JONESBORO, ARKANSAS, MARCH 19, 1994, AT 9:30 A. M.
(THE FOLLOWING HEARING WAS HELD IN THE JURY ROOM IN THE PRESENCE OF THE JURY.)
THE COURT: Alright, let the record reflect that this is a hearing at the request of the attorneys involved in the case in the jury room with the jury present and out of the presence of the spectators for the purpose of polling the jury by name as to the verdicts.
So, ladies and gentlemen, similar to what we did yesterday afternoon, I'm going to have the Clerk call your name and if the verdicts that were rendered are your individual verdicts, then answer "yes." We're doing this in this fashion to try to give you some relief from questions that the press might ask or identifying you (3429) specifically as jurors. So if you understand what were doing -- it's called polling the jury -- and if it is your verdict -- or if the verdicts -- all six of them are yours, answer "yes." Alright.
THE CLERK: Peggy Roebuck.
MS. ROEBUCK: Yes.
THE CLERK: Joan Sprinkle.
MS. SPRINKLE: Yes.
THE CLERK: Vicki Stoll.
MS. STOLL: Yes.
THE CLERK: Kent Arnold.
MR. ARNOLD: Yes.
THE CLERK: Barbara White.
MS. WHITE: Yes.
THE CLERK: Sharon French.
MS. FRENCH: Yes.
THE CLERK: Peggy Vanhoozer.
MS. VANHOOZER: Yes.
THE CLERK: Howard McNatt.
MR. McNATT: Yes.
THE CLERK: William Billingsley.
MR. BILLINGSLEY: Yes.
THE CLERK: John Throgmarton.
MR. THROGMARTON: Yes. (3430)
THE CLERK: Jennifer Dacus.
MS. DACUS: Yes.
THE CLERK: Oma Dooley.
MS. DOOLEY: Yes.
THE COURT: Alright, ladies and gentlemen, one other question that the Court has. Of course, I have given you an admonition practically every time we've recessed or anything that you are not to discuss the case with anyone and I take it that none of you have discussed this case other than as a deliberating jury body. Is that correct?
THE COURT: To your knowledge, do any of you know of any family member, or associate, or contact, or person that you may be acquainted with that has attempted in any way to discuss this case with you or influence you in any way? Have any of you had that occur?
THE COURT: Can you give me your assurances that at least to this point in this case that there has been no contacts from the outside by family, media, or anyone else that would in any way influence your findings?
THE COURT: Are each of you satisfied and can you give me your personal assurance that you have only considered the evidence that was introduced in court by (3431) proper court procedure?
THE COURT: Okay. Do any of you feel that there has been anything whatsoever that in any way affected your ability to deal strictly with the evidence that was produced in court?
THE COURT: Alright. I'm going -- we're going to try to move right along. I'm going to have the bailiffs take you down to the conference room just for a few minutes and then we've got to do some preliminary stuff here and then we'll call you back up just as promptly as possible to proceed.
(JURY EXITING JURY ROOM.)
THE COURT: Y'all be seated and let the record reflect this is a hearing in chambers and out of the presence of the jury.
When I arrived this morning, y'all were having a little conference and I came in to inquire about one of the technicalities with regard to sentencing and was informed at that time information had come to Mr. Davidson and Mr. Price that one of the jurors had received a death threat to a member of his family and in fact the juror was identified as the foreman and that his daughter allegedly had been threatened with death (3432) supposedly from some contact from Damien Echols and that that information was communicated during deliberation to other jurors.
We looked at the rules. The Court is very reluctant to inquire of the jury as to matters involving their deliberation. I think it's Rule Six -- what is that rule -- Six Oh---
MR. FOGLEMAN: Six Oh Six.
THE COURT: ---Six Oh Six, I think.
I did after we discussed it off the record make the inquiry just reported on the record of the jury that I thought was in as specific terms as the rule will allow. You all heard the questions I asked the jury and you saw their responses.
I'm confident and satisfied that no outside contact has been made to the jurors and that no evidence has been considered.
MR. WADLEY: Judge, that -- you have not asked any question at this point that you could make that determination, your Honor. That question---
THE COURT: Well---
MR. WADLEY: ---the way the questions were asked by the Court were so general in nature that to get an elicited response that a juror's daughter was threatened.
THE COURT: I don't feel at this point in between (3433) the punishment -- the penalty -- the guilt or innocence phase and the punishment phase that I can appropriately single out jurors and ask them that question and I'm not going to now.
MR. WADLEY: Judge---
THE COURT: I did tell you that you all could raise that matter after they deliberate and after we proceed. Now, I will allow that.
MR. WADLEY: Yes, sir, your Honor. That's -- that's -- and I understand that. But for the Court to state on the record that the Court's made a finding that the Court does not think they've been influenced, that's -- the question just doesn't elicit that response to make that determination.
THE COURT: Well, I -- the problem I have is every trial -- if we come up with a rule that if somebody calls a juror at home and says, "We're going to get you if you do such and such," that every trial forever would be suspect to manipulation. And I guess those are appropriate questions at the end of the case to see whether or not that did occur and whether or not it influenced their findings, but I'm not about to do it in the middle of the trial in between these phases. And I told you that I -- I mean if it occurred that it could very well result in the original verdicts of guilt being (3434) overturned. I don't have any problem with that. It's just I do have a very serious problem with suggesting to the jurors that some member of the jury has been threatened or their family has at this point---
MR. WADLEY: I understand your Honor.
THE COURT: ---and I'm not going to do that.
MR. WADLEY: I would just say--
THE COURT: --If you all would state for the record how this information came to you. Was it you, Mr. Davidson?
MR. DAVIDSON: We received a call last night. It's our understanding that---
THE COURT: From whom? I want to know who called you, what was said.
MR. DAVIDSON: The call was from Dan Stidham. It is our understanding that one of the jurors, Ms. Sprinkle, was upset after leaving the court yesterday.
That she went to her daughter and communicated to her daughter about being upset in the court. And also within that conversation told her daughter that one of the jurors -- one of the other jurors whom we think is Kent Arnold -- his daughter had received a death threat allegedly from one of Damien Echols' friends -- the defendant -- and that that information had been communicated to the jury at some point during their (3435) deliberations.
And the daughter of the juror told that information to Dan Stidham's wife -- from my understanding they're friends. And that from there that information was communicated to us. She was present and I -- I didn't talk with her directly, but I could hear her talking and telling Dan things in the background when he --
THE COURT: His wife?
MR. DAVIDSON: Yes.
THE COURT: Of course, Dan Stidham represented the co-defendant.
MR. PRICE: That's correct.
MR. DAVIDSON: That's correct, your Honor. And that's something we just -- we knew none of that information until last night.
MR. PRICE: Judge, I was on the phone -- the other phone -- with Mr. Davidson and I agree with everything that he's stated.
THE COURT: Alright.
MR. FORD: Your Honor, it's also -- it's also been related -- has been related to me through that same -- just in talking to Scott that in addition to the facts regarding Kent Arnold that apparently at one time the juror, Jennifer Dacus, communicated to your Honor that (3436) she had received threatening phone calls and that she relayed that fact to you and that you discussed it with her about whether she wanted anything done about it, whether it -- and that you advised her to put a trap on the phone, but since that time it has not reoccurred.
That that was after -- the Court indicated that that was after she had been selected as a juror and that fact was never communicated to defense counsel that Jennifer Dacus had received threatening phone calls after having been selected by a jury even though that knowledge was known by the Court.
THE COURT: Ms. Dacus contacted me at some point during the trial and she didn't say she had received a threatening call. She had received a -- either an unidentified abusive type call. And she was just reporting that to me and I asked her, I said, "Would that -- does that affect you any way? Does it cause you any fear? Do you want to be excused from the jury?" And she says, "Oh, no, I just thought I should tell you." And I said, "Well if you have any -- if that would bother you in any way serving on this jury, we have alternate jurors. We also can have the police put a trap on your phone to monitor abusive phone calls." She says, "No, that's not necessary. It happened a (3437) few days ago and it hasn't happened since." And I said, "If it happens again, you report it to the bailiff or to me immediately and I'll make it known to the lawyers and we'll do whatever is necessary."
And that was -- that was two weeks ago. And she's never said anything since then and seemed very confident that it didn't bother her and she just figured it was one of those things, and that she felt like she had a duty to report it to the Court.
Not that it affected her in any way. In fact, I inquired of that. And that occurred in the hallway out here one morning about two weeks ago. And I think -- I think Karl McSwain was aware of it and I might have mentioned that to the Sheriff. I told the Sheriff about it.
Were you standing there, Sheriff, when I talked to her? Is that about what I told her?
THE SHERIFF: That's the way I remember it, your Honor.
THE COURT: And she -- she -- if I thought that there had been any problem about it or it was anything other than a crank call -- and she didn't describe it as a threatening call - it was a crank call. And that there hadn't been any more and she wasn't concerned about it.
MR. DAVIDSON: Your Honor, I would like to point out (3438) that the way we found out about this information was in the same manner in that the other juror -- not Ms. Dacus -- but Ms. Sprinkle, told her daughter about this situation also. And so, therefore, it's our assumption that that had been discussed in the jury room also, or we would have had no knowledge. So we---
THE COURT: Well---
MR. FORD: Your Honor, for the record, I would like to say at this time that the -- a -- a ten or fifteen minute discussion was held off the record regarding this subject prior to entering the jury room to question them and, at that time, counsel requested that the Court specifically inquire as to whether or not a threat had been received by Kent Arnold's daughter and that that fact in turn had been related to the remaining members of the jury and had been discussed.
Also, we asked that the Court inquire as to whether or not the phone call that had been received by Jennifer Dacus had been discussed and that we asked that the Court ask those specific questions prior to proceeding on the issue of the death penalty.
The Court advised that the Court was of the opinion that in the event those facts regarding the threat had indeed been relayed to the remaining members of the jury and discussed, that it would be the basis for a mistrial. (3439) That we feel that there are -- the death penalty phase and the guilt/innocence phase under Arkansas case law are two separate trials and that having -- the first trial being completed and finished before the second trial begins, that an inquiry should have been made at this stage, your Honor, that -- of that taint in fact exists in the jury pool, it will in deed affect the deliberations regarding the death penalty. And therefore, the same -- the taint that could have been cured has not been cured prior to proceeding to the question of the death penalty. And it would be---
THE COURT: Well, let me ask you: How questioning the jurors on that matter and putting it into their minds something that may not already be there, how it could cure what you're calling a taint?
MR. FORD: Well, if the taint -- if -- if -- the Court assumes for matter of argument, that the answer is affirmative and that our information that we have received is accurate, the Court would declare a mistrial and the taint would be eliminated because a new panel and new jury would be seated. And---
MR. WADLEY: Would the Court consider visiting in camera with the juror, Kent Arnold? If Mr. Arnold were to -- were to -- just him alone -- advise the Court that, "Yes, my daughter was threatened, and yes, the nature of (3440) that was discussed with the other jurors." Then at that point in time, your Honor -- did you ever talk to---
THE COURT: I'll do that if you all all agree to it.
MR. WADLEY: It's only to that juror.
THE COURT: If you all all agree to it on the record, I'll call -- since he is the foreman of the jury it might be appropriate. But I don't want any questions asked about in any detail about what they discussed in the jury room because the juries invariably talk about Uncle Joe in Saganaw, Michigan, and such and such happen to him, and that kind of stuff happens in every trial.
MR. WADLEY: But, your Honor---
THE COURT: And that obviously is not evidence.
MR. WADLEY: Yes, sir.
THE COURT: Alright, now, I'm going to limit it to asking him that a report was given and we can outline the circumstances, I guess -- that his daughter received a threat and that that was communicated to the jury pool -- jury in their deliberations.
MR. WADLEY: --Not the pool--
THE COURT: --But to the jury members. I'll do that. I don't -- but what do we do if he says, "Yes, that happened."? (3441)
MR. PRICE: That's when we'll have other arguments.
THE COURT: Are you comfortable with that from the State? I mean, I guess at this point there's probably no other course.
MR. FOGLEMAN: Let the record show that the defense is still willing to take the risk of posing these questions and responses that may come from them.
THE COURT: Again, I'm going to be asking the questions.
(KENT ARNOLD ENTERING THE JURY ROOM)
THE COURT: Come on in, Kent, and have a seat.
MR. ARNOLD: Let me catch my breath.
THE COURT: Okay, gentlemen, let the -- just have a seat. Let the record reflect that this is an inquiry at that -- we're making an inquiry of you as jury foreman and individually. Has you -- have you or any member of your family, including perhaps a daughter, ever received a threat that could be attributable to the defendants in this case or anyone associated with them?
MR. ARNOLD: Directly?
THE COURT: Directly.
MR. ARNOLD: No.
THE COURT: Have -- has even the indirect suggestion (3442) of that in any way affected your ability to be a fair minded juror in this case?
MR. ARNOLD: No.
THE COURT: Was -- anything else?
MR. WADLEY: If you could discuss the--
THE COURT: --Well, okay, I'll ask you this. I don't want you to explain anything or go into any whole lot of details, but apparently indirectly perhaps you or a member of your family has received a threat. Was that discussed in the jury room -- attributable to the defendants or anyone related---
MR. ARNOLD: I discussed indirectly that I heard something -- in the jury room?
THE COURT: Yes.
MR. ARNOLD: Yes.
THE COURT: Was that before or after your verdict?
MR. ARNOLD: Two weeks ago.
THE COURT: Was that discussed during your deliberations?
MR. ARNOLD: No, none whatsoever.
THE COURT: Not at all during your deliberations?
MR. ARNOLD: No. In fact there was probably a ten second conversation and it wasn't brought up again.
THE COURT: Okay. Was that on -- about two weeks ago? (3443)
MR. ARNOLD: Um-hum.
THE COURT: Just informal conversation with people sitting around? Is that what it was?
MR. ARNOLD: Um-hum.
THE COURT: And did you discuss it at all during your deliberations?
MR. ARNOLD: No. None whatsoever.
THE COURT: Was it mentioned by anyone during the course of your deliberations?
MR. ARNOLD: No. No.
THE COURT: I don't have any other questions.
MR. REES(?): I think you should ask him whether that has anything to do at all with the verdicts.
THE COURT: Well, I did. Did that have any affect on your decision whatsoever?
MR. ARNOLD: None whatsoever.
THE COURT: Did it have any -- and you didn't even discuss it in your deliberations?
MR. ARNOLD: I think if -- I think if anybody would be interested, the only thing that was discussed during deliberations was only facts in evidence that was delivered to us and nothing else.
THE COURT: Alright, thank you.
(MR. ARNOLD EXITING JURY ROOM.) (3444)
THE COURT: Alright, you heard his responses.
MR. PRICE: Judge, my concern is from the way he responded, apparently there's been some kind of indirect threat and we think the Court should inquire into the details about that. If there was an indirect threat that he discussed with the jury members even two weeks ago before they started deliberating, that's something we should be aware of.
MR. WADLEY: It makes no difference at all when that threat was discussed -- whether it was in deliberations or whether it was in trial. It makes no difference. The fact of the matter is, your Honor, is that Mr. Arnold acknowledged to the Court that he had -- there was an indirect threat made to him or his family and that was discussed with jurors in this case, and just because it wasn't discussed in deliberations, that doesn't have any -- doesn't mean that those jurors were tainted and it was a part of their process -- their mind process in determining guilt or innocence in this case -- more specifically now, guilt.
MR. FORD: Or, your Honor, the -- the assessment of the witnesses' testimony throughout the entire--
MR. WADLEY: --credibility--
MR. FORD: --proceeding. Throughout the entire proceeding to which for the last two weeks everything (3445) they have heard could be affected by that fact. And if--
MR. WADLEY: --They don't have to discuss it--
MR. FORD: --you believe -- if you believe a certain way you channel -- you make a determination of credibility based on those facts. And, your Honor, based on the responses of Mr. Arnold, we move for a mistrial.
MR. PRICE: We join in that request, your Honor.
MR. DAVIDSON: Join in that. Your Honor, we also state that obviously it had an effect on other jurors rather than just Mr. Arnold who was questioned because that as brought out by another juror.
THE COURT: I'm going to deny a mistrial. I'm satisfied with his answers.
MR. PRICE: Well, Judge, we--
MR. FORD: --We--
MR. PRICE: --Our concern is you did not question him in detail about what the indirect threat was.
THE COURT: I'm not going to question him in detail. I'm satisfied with his answers. The record's been made. If it's reversible, then you've got a point for reversal.
MR. PRICE: We would request that you inquire about the other eleven jurors.
THE COURT: I'm not going to do that either.
MR. FORD: We would join in the request of the other (3446) eleven be questioned.
MR. PRICE: We know -- we know -- we know for a fact that at least one other juror is aware of this and if that juror is aware of it, then I think the Court should inquire if the other ten jurors---
MR. DAVIS: Do you know that for a fact?
MR. PRICE: Well, we have information to believe that at least one other juror---
THE COURT: --I've made all the inquiries of the jury I'm going to. You all can--
MR. WADLEY: --Part of the -- part of the revelation that was made known to those two attorneys last night has been -- has been confirmed this morning. Yet in fact in deed Mr. Arnold did bring into this jury room a threat that was made directly or indirectly to one -- him or his family member. He's acknowledged that this morning. He's also acknowledged that it as discussed.
THE COURT: Not in the deliberations.
MR. WADLEY: But, Judge, it makes -- that has -- that makes no difference, your Honor, as to when it was done.
MR. FORD: A taint is a taint.
THE COURT: I'm going to deny the motion for a mistrial and we're going to proceed and then if you -- if it's reversible, you can reverse it. (3447) Alright, anything else?
MR. PRICE: Do you want me to make that death penalty argument right now, Judge?
THE COURT: Yes.
MR. WADLEY: Judge, I thought -- I thought you told us back when we had that -- when we had a discussion before we went on the record, that if in fact a conversation had been had between the jurors concerning a threat, the Court was of the opinion that that would -- that that was reversible, and the Court would grant a mistrial.
THE COURT: No, I don't think I said it quite like that. I said that it could very well be information that could lead to a mistrial, but I'm satisfied with his responses. I'm satisfied with the questions I asked of the jurors in whole that they weren't influenced by anything outside, and I'm satisfied with it. So we won't -- I'm --
MR. PRICE: --It -- it - our -- our objection is that -- to the Court once Mr. Arnold gave the response that a family member did receive an indirect threat, that then the Court should have gone into it in a little bit more detail about what that threat was.
THE COURT: I'm not going to go into details.
MR. PRICE: Then -- then - then it is our position (3448) that because he said his daughter received an indirect threat, that should be enough to grant a mistrial.
THE COURT: Denied.
MR. DAVIS: Judge, the State might have one request, and I think it would be appropriate for after the second phase of the trial. In order not to do anything to impair the jury's judgment at this point in time--
THE COURT: --Well, they may already have.
MR. DAVIS: --I mean I want the record to reflect that that was -- that the question was at the request of all the defense attorneys.
THE COURT: Why -- that's why I did it.
MR. PRICE: That's correct. I agree with you.
MR. DAVIS: After the deliberation of the second phase and after they've reached a decision, for clarification of the record, the Court might want to inquire of Mr. Arnold as to the nature and the circumstances surrounding that statement to make a clear record.
THE COURT: That's what I wanted to do to begin with -- after the trial was over. And because if as you say that it was to such extent that it would prejudice the whole jury panel, then it's more significant after they've concluded and before we interject some thought in their mind that something is amiss or wrong. (3449)
MR. FORD: Your Honor, we were of the opinion that the -- that the report received by Scott and Val has been confirmed and the fact that a juror went to her daughter after it was over and began to discuss the taint, that that was one of the things that bore heavy in her mind because it was relayed.
THE COURT: Those are things you can all raise at the end of the case and you take affidavits I guess from the daughter and people like that -- not the jurors themselves -- and ask for a new trial. But at this phase of the trial, I'm not going to grant a mistrial. We've gone too far and I'm going to proceed. I don't think it's prejudicial from my observation of the foreman of the jury and from what he related to us coupled with the general questions of all twelve of the jurors. I think these people have worked very hard to be fair.
MR. WADLEY: This man -- this juror, your Honor, he can't -- he can't state what the state of mind of these others -- what the effect this may have had on the other jurors. To make it even more -- take it even a step further, he's the foreman -- the foreman of this jury.
THE COURT: He said it was a ten second reference to an indirect thing that occurred two weeks ago and that none of that as mentioned in the course of their (3450) deliberations whatsoever, and that's what his testimony is. We've made a record of it. Go on and make your record.
MR. WADLEY: Judge, if we -- if we inquire from this other juror and she comes up and she says, "Yes, we had that discussion and, yes, it took this long to do, and yes, that had an effect on me. Well, yes, that influenced me, or yes, we discussed it." Is that a basis for a mistrial?
THE COURT: I don't know.
MR. DAVIS: That's the problem we get into, Judge.
MR. WADLEY: I don't mean now.
MR. DAVIS: But the problem that we get into is when these hypothetical questions are asked in advance and a ruling based on those hypotheticals, then whenever the actual facts come out, then the defense says, "Well, see, he told us before if certain facts occurred, this is how you were going to rule."
MR. WADLEY: There wasn't a hypothetical question to his Honor back there when we were talking a back there. Judge, you said that you would grant -- you said that it was reversible.
THE COURT: I didn't say I would grant a mistrial. I said it possibly could be grounds for one.
MR. FORD: Judge, I think your remarks out -- I (3451) think your remarks off the record were much stronger than your remarks now. Because I think the -- because of the reactions of the prosecutor when you made your remark was one of sickening.
THE COURT: Well, again, gentlemen, people talk about all sorts of things in the jury room. They talk about personal experiences in life. They talk about relationships with members of the family and the things they would do under the same circumstances -- or wouldn't do.
MR. WADLEY: That's not what we've got here, Judge.
THE COURT: Well---
MR. WADLEY: This is a specific conversation--
THE COURT: --I'm not going to go into details with the man. I think he told you -- if you can make anything out of it, fine. I couldn't make anything out of it to warrant a mistrial.
MR. PRICE: Well, Judge, at this point I would to make a motion concerning the only aggravating the State is going to submit under Arkansas Code Annotated Five, Four, Six Oh Four Eight -- that the capital murder was committed in especially cruel or depraved manner.
It's the position of Mr. Echols that this is an unconstitutional aggravator and the Court should -- should not give this to the jury. It's our position -- a (3452) little bit of the history of this particular aggravator. Back in nineteen eighty-give, Act Eight Thirty-three added a similar provision that was stated that especially cruel -- making it if a murder was committed in an especially cruel manner, that it was an aggravating circumstance. The -- in the Wilson versus State case in 295 Ark. 682, 751, S.W.2d 734 (1988), the Arkansas Supreme Court held that the old version of this provision was unconstitutional because it did not provide a clear standard to distinguish it between ordinary capital murders and especially cruel capital murders.
In nineteen ninety-one, the statute was amended to get the version that we have right now. It is my -- based on my reading of the case law this has not been challenged. There has not been an appellate decision by the Arkansas Supreme Court on this particular provision.
It's our position that there's no genuine narrowing of the types of persons deserving a death as opposed to those eligible for the death penalty, and that this particular statute does not serve the narrowing function.
We argue basically two points. One, it is unconstitutional generally, and also unconstitutionally applied to the facts of this particular case.
It is our position that because of the -- Arkansas definition of premeditation -- almost anything -- any (3453) capital murder can fit under the premeditation category and because this is a huge category and class, every murder fits under there, that it doesn't narrow the facts by using cruel and depraved manner which is a current aggravator that's currently used in Arkansas.
The leading U. S. Supreme Court cases on this: Profitt versus Florida, 428 U. S. 662, which is a nineteen seventy-six case. In that case the Supreme Court struck down the -- a statute very similar to the old Arkansas statute, and also there is one other case Gregg versus Georgia, and also Godrey versus Georgia, both U. S. Supreme Court cases that basically follow the same reasoning.
It is our position that the standards of unchanneled imposition of death sentences in the basically uncontrolled discretion of a basically uninstructed jury in this case would not be cured by instruction by the Court. It's our position that perhaps we could dwell on the conscious feelings of the victim of the crime that has been perpetrated. We might also feel the common revulsions felt by people when confronted with the thought of death or might look at the perpetrator to consider whether he was engaged in a rampage in this case.
If the Court begins to adjudicate on this issue at (3454) this level, we are more likely to wind up at this time with the very sort of inconsistency the Constitution requires us to avoid. Also Carlock versus Maynard is another case along the same lines.
It is our position that the words even cruel or depraved manner could mean almost -- can mean nearly anything and even -- just like when the Supreme Court in the Wilson case back in eighty-eight struck down the old statute of especially heinous, atrocious or cruel. It is also our position that the -- even with the definitions listed in the statute as the State has tendered to your Honor they -- the definitions which although the A. M. C. I. does not contain any definitions, Mr. Davis and Mr. Fogleman have correctly quoted verbatim the definitions stated in the statutes. Even with that it's our position that this unconstitutional in general and also unconstitutional as applied to my client, Mr. Echols, and the Court should not give this aggravator.
THE COURT: Alright, anything else, gentlemen?
MR. FORD: Your Honor, we would join in that argument on behalf of Jason Baldwin. Likewise, your Honor, we would object to the reading of the definitions of cruel and depraved because it is not included in the A. M. C. I. I believe that the newly revised A. M. C. I. is now in print and is available and that it is not (3455) contained in the brand spanking new A. M. C. I. and all other definitions---
MR. FOGLEMAN: Have you seen it and it is not in there?
MR. FORD: I'm -- Scott said he had seen it.
MR. DAVIDSON: I haven't seen it.
MR. FORD: Okay, well then I'll -- I'll -- your Honor, it is not -- I thought you had told me you had seen it. If you have not I will retract that because that was the basis for that statement.
That it is not in the A. M. C. I., your Honor, as we have it available today, and other definitions are included throughout parts of the instruction code and that to give it when it is not included is inappropriate.
THE COURT: Well, the Court can give definitions when necessary and I think that the case law even suggests that the way it's worded is vague and uncertain and that was the reason why the definition was created to begin with, and I think it's appropriate to give, and I'm going to give the definition.
MR. DAVIS: Judge, I want it for the record, I think the law that -- when they changed the laws to define those terms -- that terminology -- the law was changed in nineteen ninety-one, and I don't believe the A. M. C. I. has been updated since that time, so it would have been (3456) impossible for there to have been a jury instruction to follow the law, so we had to come up with a jury instruction that follows the law.
THE COURT: Well, I think the case law indicated that as given it was vague and uncertain and didn't give a sufficient guideline to a jury to determine what -- what that aggravating instruction meant. So the definitions were created or -- created is a good word, I guess, for it, and I'm going to give them.
Alright, anything else?
MR. PRICE: For the record, is the Court denying my motion to--
THE COURT: --Yes.
MR. PRICE: Two other points, Judge. One, one of the mitigating circumstances that we will be submitting to the jury is under Five, Four, Six, Oh, Five. The defendant has no significant history of prior criminal activity.
It is my understanding that the only two prior convictions that my client has -- well, actually two -- two argument. First of all that they were both in Juvenile Court and that juvenile convictions should not be a part of significant prior criminal history and, therefore, the Court should make a ruling--
THE COURT: --Do you intend to introduce juvenile (3457) records of a crime that would have been an adult offense?
MR. FOGLEMAN: I suppose to protect the record we won't use it. It's not worth risking it.
THE COURT: So you don't even do it?
MR. FOGLEMAN: Yes.
THE COURT: You can suggest to the jury that mitigating circumstances exist.
MR. PRICE: All right.
THE COURT: You can do that even if they introduce them.
MR. PRICE: Judge, the other point I would like to make at this time. I anticipate that Mr. Ford and Mr. Wadley may be making the argument on behalf of Mr. Baldwin that the mitigating factor Five, Four, Six, Oh, Five, Two, might apply that the murder was committed -- at the time the murder was committed that Jason Baldwin was acting under unusual pressures, were influenced or under the domination of Damien Echols, and it is our position that it would be improper for Mr. Ford to argue this.
Number one, there's nothing in evidence to indicate that this is to be the facts. And, number two, if Mr. Ford intends to argue this, it's one more basis that we would -- it is our position that this would create a antagonistic defense even to the (3458) mitigating circumstances -- defenses in the death penalty stage -- and that we would at this time make a Motion in Limine that Mr. Ford or Mr. Wadley be prevented from arguing that -- number two, that that particular one and also the same argument with the same reasoning goes if Mr. Ford or Mr. Wadley attempts to argue under Five, Four, Six, Oh, Five, Five, the accomplice portion. That the murder was committed by Damien Echols and Jason was an accomplice, and his participation was minor.
We object to him making that argument because there's no -- there's no argu -- no evidence put forth at all as to who actually was the accomplice and whether either Mr. Baldwin or Mr. Misskelley for that matter, or Mr. Echols whose actions were as an accomplice or whose participation was actually minor.
And this is the same reasoning as far as the Motion in Limine that -- that the Court -- as a basis that this is creating antagonistic defenses even in mitigation and that we request -- you know, because of the Court previous rulings about severance.
THE COURT: Those motions will be denied. It's the Court's opinion that that's the reason and basis for having a bifurcated trial until one's guilt or innocence has been established. Those issues would have been very pertinent to consideration of guilt, innocence, could (3459) have prejudiced one or both of the defendants had there been cross implicating arguments made during the guilt/innocence phase.
But the very nature of a bifurcated trial is to provide and to allow defendants to interject any mitigating factor or argument that they think is appropriate with respect to punishment. So if this is narrowed down to punishment, I'm going to allow each of you to argue anything and everything that is appropriate from the case as a whole. Now, specifically with regard to your argument about arguing domination on the part of one that you're saying that there's no evidence to suggest that---
MR. PRICE: Yes.
THE COURT: ---I think that there is evidence and you could rationally argue that and I'm going to allow it.
MR. FORD: The State argued that.
THE COURT: I'm going to allow--
MR. FORD: --You allowed--
THE COURT: --well, I don't know what you're arguing for. I told you.
MR. FORD: I just want to make the record clear with respect to Mr. Price's argument that regarding what I would be restricted in is that the State in fact argued (3460) those points in closing, so that's--
THE COURT: --Without objections so I'm going to allow it. Anything else?
MR. DAVIDSON: Your Honor, at this point we would renew our motion for severance. Has that been denied?
THE COURT: Yes. Alright, let's go do it.
(RETURN TO OPEN COURT.)
(THE FOLLOWING DISCUSSION WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY.)
MR. PRICE: Judge, I was just concerned about security. I would object to all of the officers being lined up behind the way they are during the penalty phase. I think the cases are -- that that's impermissible.
THE COURT: I'm going to have them sit down on the bench back behind you there.
MR. PRICE: Does there have to be the number of officers that are standing there?
THE COURT: Well, I want the officers here particularly when the sentence is read.
MR. PRICE: Well, I don't have any problem with that--
THE COURT: --But for now they can just sit down on (3461) the bench behind you there. You all just have a seat on the bench back there.
(RETURN TO OPEN COURT.)
THE COURT: Getting off to a late start again, ladies and gentlemen, but hopefully we can move things along fairly rapidly. At this time we'll receive additional testimony if the parties have any. Does the State have any additional evidence?
MR. FOGLEMAN: Your Honor, on behalf of the State at the stage of the trial, we would offer all of the evidence that has been previously introduced over the course of this trial in the guilt or innocence phase.
THE COURT: Alright.
MR. FORD: Your Honor, on behalf of Mr. Baldwin we would do the same thing, your Honor, and ask that the record for this proceeding be identical to the record that has been made previously.
THE COURT: Alright. Do you have any additional--
MR. PRICE: --Yes, your Honor.
THE COURT: --testimony or evidence?
MR. PRICE: Yes, sir, we do.
THE COURT: Alright. (3462)
MR. PRICE: Judge, the first piece of evidence was actually introduced previously, but because it relates to a mitigating factor, the rights form that was introduced earlier on my client which is State's Exhibit Number Ninety-seven, lists the date of birth of my client which is twelve, ten, seventy-four.
THE COURT: Are you stipulating that that's the correct date of birth?
MR. PRICE: Yes, sir.
THE COURT: Alright. And the evidence, of course, may be considered because it was already introduced.
MR. PRICE: Yes, sir.
THE COURT: Alright. Who is your witness?
MR. DAVIDSON: We would call Joe Hutchinson to the stand.
MR. PRICE: We have three witnesses to call.
THE COURT: Has he already been sworn?
MR. DAVIDSON: I'm not sure, your Honor.
THE COURT: Okay.
MR. PRICE: Judge, do you want to swear all three witnesses?
THE COURT: Yes, let me -- all of you that know yourselves to be witnesses, please stand and raise your right hand. (3463)
(WITNESSES BEING SWORN BY THE COURT AT THIS TIME.)