THE COURT: Are you ready to call your rebuttal witnesses?
MR. FOGLEMAN: Probably not until this afternoon, your Honor. We have moved along faster than we anticipated.
THE COURT: I assume you have some motions to make also?
MR. FORD: Yes, sir.
THE COURT: All right, ladies and gentlemen, I'm going to let you take your noon recess a little early. With the usual admonition not to discuss the case among yourselves or with anyone, you may stand in recess until 1:00 o‘clock.
(JURY LEAVING THE COURTROOM AT THIS TIME)
THE COURT: Let the record reflect that this is a hearing out of the presence of the jury at the close of the defendants‘ case. (3110)
All right, gentlemen.
MR. FORD: At the close of our case we would renew the motion for a directed verdict which has previously been made in this case based on the insufficiency of the evidence to link Jason Baldwin to these homicides in any way.
We also renew our motion for severance as has previously been made based on the fact that Damien Echols took the witness stand and Jason Baldwin did not take the witness stand.
MR. DAVIDSON: Your Honor, we would also move for a directed verdict based upon the insufficiency of the evidence. We would restate and reiterate all arguments made at the close of the State's case, and we would say that there certainly has not been sufficient evidence to show that Damien Echols did indeed -- there hasn’t been sufficient evidence set forth to show that he committed these crimes. We would ask for the directed verdict.
We would renew our motion for severance and would further -- excuse me just a second, your Honor.
(MR. DAVIDSON AND MR. PRICE CONFERRING)
MR. DAVIDSON: Further, your Honor, by making our -- as required by the rules at the close of the defense case we are making this motion for a directed (3111) verdict, but we are not waiving any right to renew our motion for directed verdict at the end of rebuttal testimony.
THE COURT: Of course.
MR. FORD: Likewise.
THE COURT: Do you want to respond?
MR. DAVIS: Your Honor, as far as motions for directed verdict, we've got a jailhouse confession on the part of the defendant Jason Baldwin. We've got statements confessing his guilt by Damien Echols at the ballpark. We've got the other evidence -- that alone gets us by the directed verdict -- along with fiber evidence connecting both of the two and evidence showing that Damien Echols was physically at the scene of the crime, also the lake knife.
All that evidence taken into consideration and when the evidence is viewed in a light most favorable to the State, the State's position is at the close of their case, they are in no different position than they were at the close of ours.
MR. DAVIDSON: Your Honor, we would also assert that there has been no proof whatsoever of premeditation. As to any charge of capital murder, premeditation is one of the elements of the offense, and there's been absolutely no evidence of (3112) premeditation and, therefore, for capital murder, that certainly should not be taken into consideration.
MR. FORD: Your Honor, we join in that.
THE COURT: Anything else?
MR. DAVIS: The State's response to the premeditation argument, is obviously the jury can infer from the nature and extent of the wounds and the conditions of the body that premeditation existed, and we would submit when three victims are bound and stabbed as many times as these victims were, that clearly is sufficient for a jury to find premeditation.
THE COURT: It would be the Court’s findings that the motion for severance previously denied will again be denied, and the motions for directed verdict on the basis of the insufficiency of the evidence will be denied.
The Court is of the opinion that the evidence is sufficient to raise a question for the jury in each case. The motion is denied.
MR. PRICE: Your Honor, one other housekeeping matter. Does the State have any idea when they will finish with rebuttal?
THE COURT: Do you have any idea? You told me earlier you had about one day's worth of testimony. (3113)
MR. DAVIS: But I think we are going to ask that we wait until at least Wednesday to be allowed to determine exactly what course we will take.
MR. FORD: If they can‘t call witnesses, what is the need to wait? If they have got a day and a half of witnesses, yeah, we will wait until Wednesday. But if they‘ve got two hours of witnesses, what are we waiting on until Wednesday?
THE COURT: Well, right now, when you rested I can understand that. You probably would have needed the time too. But he's talking about having witnesses here at 1:00 o'clock.
MR. FORD: But if his witnesses are done at 3:30 this afternoon, what is the need to wait past Tuesday morning?
THE COURT: I don't have any idea. You all haven't given me any instructions you want the Court to consider either so that would be something we could do. Have you got your instructions prepared?
MR. FORD: I'm waiting to see what the State submits, your Honor, based on what they think their proof is and then if there are additional instructions we want to offer, we’ll do that, but they have to prepare the instructions as they carry the burden of proof. (3114)
THE COURT: Well, I suggest that you have your instructions ready for me at 1:00 o'clock. And I guess it's possible that the case could go to the jury tomorrow afternoon.
MR. FOGLEMAN: Your Honor, we've got seven or eight rebuttal witnesses.
THE COURT: I understood you had one expert witness in rebuttal. When is he going to be here?
MR. FORD: Your Honor, what is their expert going to rebut?
THE COURT: I don‘t know. They just informed me this morning they had a possible expert witness. I assume the hair and fiber.
MR. FOGLEMAN: Your Honor, we've got those, and I've got to contact one of them to see when he can be here. We were caught a little off guard by the timing. We're asking Ms. Sakevicius to come back. We also have the pathologist who we want to call. Those are the experts unless something else develops.
MR. FORD: Your Honor, I think we need to have a determination as to what will the pathologist be rebutting that was presented in the defense case?
MR. DAVIS: If I may address that, I think Mr. Price questioned Mr. Echols and all witnesses extensively about his whereabouts during the time (3115) period of like 11:00 until 2:00 in the morning and threw in this time factor issue again, and I think it is appropriate for us to rebut the inference that the crime occurred at that time of the morning -- or that the deaths occurred that time of the morning with the pathologist --
THE COURT: -- I‘m going to allow you to call him.
MR. FORD: You're going to allow them to call a pathologist on the issue of time of death when time of death was never discussed in the defendants' cases?
THE COURT: Yes. If necessary I will let them reopen their case. That is discretionary with the Court. I don't know what you're making a big fuss about.
MR. FORD: I just want to know what it is. Are you allowing them to reopen their case?
THE COURT: I just said I'm going to allow them to call the witness. You can call it rebuttal or you can call it their case reopened if you choose to classify it in that fashion.
MR. FORD: I'd like to know whether it is rebuttal or whether it's reopening their case if you're going to allow that witness to testify.
THE COURT: I suppose time of death is kind of an (3116) open issue and if you call a single witness and ask them about their whereabouts on a particular day in question, that leaves open the question as to the time of death so it could be rebuttal. It could also be that in my discretion I'm allowing them to call additional witnesses.
If you want to call additional witnesses after they are through, you will be granted that prerogative.
MR. FORD: I'm asking you whether the Court is allowing this pathologist to testify under rebuttal or whether he is being allowed to testify because you are allowing them to reopen their case.
THE COURT: I think I just explained that.
MR. FORD: You didn't tell me which one --
THE COURT: -- You pick one.
MR. FORD: No. I'm asking the Court for a ruling.
THE COURT: You've got my ruling. Court will be in recess until 1:00 o'clock.