Fogleman: You are Bill Durham with the West Memphis police department who has previously testified?
Durham: Yes sir.
Fogleman: Uh - Detective Durham, I want to direct your attention to May 10, 1993. On that date, did you have a conversation with the defendant, Damien Echols?
Durham: Yes sir, I did.
Fogleman: Prior to having that conversation, did you advise him of his rights as to the state and federal constitution and laws?
Durham: Yes sir, I did.
Fogleman: Alright. And how did you go about advising him of his rights?
Durham: I used a standard advice of rights form which I placed so that he could read along as I read it to him. He placed his initials beside each of his rights and signed a release of rights form.
Fogleman: You have a copy of that there?
Durham: Yes sir, I do.
Fogleman: Alright, state is going to mark it number 228. Alright, let me show you what is marked for identification purposes as state's exhibit 228, ask if you can identify that.
Durham: Yes sir, this is advice of rights form in which I filled out, in which Damien Wayne Echols signed and I also signed as a witness.
Fogleman: Alright, and what time did you advise him of his rights?
Durham: 1:40pm.
Fogleman: Alright. And uh - who all was present when you advised him of his rights?
Durham: Just myself and he.
Fogleman: Did you use any force, promises, threats, or coersion to get him to sign the advice of rights form?
Durham: No sir.
Fogleman: Did you fully explain his rights to him?
Durham: Yes sir, I did.
Fogleman: Did he indicate whether or not he understood any of those rights?
Durham: He indicated that he did.
Fogleman: And how did he signify that understanding?
Durham: I asked the man if he understood this and he said "Yes", I then had him initial by each of his rights.
Fogleman: Did you follow that procedure for each of his rights?
Durham: Yes sir.
Fogleman: Did you use any force, promises, threats, or coersion to get him to place his initials by each of his rights?
Durham: No sir.
Fogleman: Did he then sign the form?
Durham: Yes sir.
Fogleman: Did you see him sign the form?
Durham: Yes sir.
Fogleman: Any force, promises, threats, or coersion to get him to sign the form?
Durham: No sir.
Fogleman: Uh - did you use any force, promises, threats, or coersion thereafter to get him to talk to you?
Durham: No sir.
Fogleman: Did at any time, did he request the presence of a lawyer?
Durham: No sir.
Fogleman: Your Honor, we would offer state's exhibit 228.
The Court: Alright, let me see it.
Davidson: No objection.
Ford: No objection, your Honor.
The Court: Alright, it may be recieved without objection.
Fogleman: How old did you determine him to be at that time?
Durham: He was eighteen years old.
Fogleman: Do you want to keep this separate somewhere.
The Court: Ok, it's recieved for the purpose of this right here.
Price: For the proffer.
Fogleman: And did you also, uh - have him execute a polygraph release form?
Durham: Yes sir, I did.
Fogleman: Alright.
The Court: The record should reflect this is out of the presence of the jury.
(mumbling)
Fogleman: I want to show you what I have marked for identification purposes as state's exhibit 229 and ask you if you can identify that.
Durham: Yes sir, this is a polygraph exam release form, which I filled out, signed by Damien Wayne Echols, witnessed by myself on May 10th, 1993.
Fogleman: Did you use any force, promises, threats, or coersion to get him to sign that form?
Durham: No sir, I did not.
Fogleman: Or to take a polygraph examination?
Durham: No sir, I did not.
Fogleman: Alright, we would offer 229.
Price: No objection.
The Court: Alright, it may be recieved without objection.
Price: Would this -
The Court: Pardon?
Price: Would this hearing be -
The Court: - Yeah.
Fogleman: Now, after having the polygraph release form signed, did you then conduct a polygraph examination?
Durham: Yes sir.
Fogleman: Alright. And when was the first chart completed?
Durham: The first chart was completed at 2:20pm.
Fogleman: Alright. How many charts in all do you do?
Durham: I do three charts.
Fogleman: Alright. And when was the second chart complete?
Durham: It's blurred on here, I can't read it.
Fogleman: Alright.
Durham: It's blurred on the edge there, I can't read any time on the second chart.
Fogleman: Alright, how about the third chart?
Durham: Alright, the last chart - the third and last chart was completed at 2:34pm.
Fogleman: 2:34pm?
Durham: Yes sir.
Fogleman: Alright. Now, following the conclusion of this uh - polygraph examination, uh - did you, uh - based on the results of that polygraph examination, did you question him further?
Durham: Yes sir, after he failed his test, I went into an interview with him questioning about the matter, he uh - denied any involvement.
Price: Your Honor, at this time, I'd like to object. I specifically obect to this officer stating, even at this denno hearing, what the results of the tests were. Your Honor specifically ruled last week, the results were not to be brought out - period. This Officer, even at this denno hearing, even though it's out of the presence of the jury, mentioned the results. We object to that, we don't want the Officer to blurt that out when the jury comes back in -
The Court: Well, the result of the polygraph are not admissible, this is a hearing out of the presence of the jury -
Price: Then they're not admissible in this hearing either, your Honor. I object to this Officer stating the results.
The Court: Well, I'm not gonna give it any concern, let's just pass on over.
Fogleman: Ok. Alright, following the uh - polygraph examination, you said that you began to interview the post test interview?
Drham: Yes sir, I did.
Fogleman: Alright. And during the post test interview, did you - first off, did you use any force, promises, threats or coersion to get him to talk to you in the post test interview?
Durham: No sir, I did not.
Fogleman: Alright. And uh - during that interview, what did he tell you?
Durham: After uh - we talked for approximately 45 minutes, he made the statement, "I'll tell ya all about it if you'll let me talk to my mother."
Fogleman: Ok. And uh - thereafter was he allowed to talk to his mother?
Durham: Yes sir, he was.
Fogleman: And then after, you recall what his mother did when she came in the room, were you present first of all?
Durham: Uh - I recall part of the conversation, she talked with him probably for about 5 minutes.
Fogleman: Ok. Uh - and after she talked to him, uh - would he talk to you further? Or would he provide um - did he go ahead and tell you like he said that he would "Tell ya all about it"?
Durham: No sir, he didn't. After his mother left, he again uh - denied any involvement in these murders.
Fogleman: And then following that, did other officers talk to him, interview him?
Durham: Um - I wasn't present when other officers talked with him. I - I can't swear one way or the other.
Fogleman: Alright, you don't know one way or the other, ok. I don't have any further questions.
The Court: What was the time when you were through with your interview and conversation with him? I know you said it, but it slid by me.
Durham: I - probably around 3:30, your Honor.
The Court: So you had already conducted your interview, done your polygraph and all that, and he was gone?
Durham: Yes sir, at the time he made this statement is gonna be approximately around 3:15, we're talking another 15 minutes, I'm gonna put the time around 3:30 when I was through with him.
The Court: Alright, anything else gentlemen?
(pause)
Price: Officer Durham, were you the first uh - police officer to talk to Mr. Echols on May the 10th?
Durham: I - I don't know, he was brought to my office.
Price: Ok, but do you know if he had talked to other officers prior to talking with you?
Durham: I - I have no direct knowledge of any conversations took place with uh - Damien prior to my talking with him.
Price: Ok. Do you know uh - how he arrived at the police department?
Durham: I don't recall.
Price: Do you know if any other officers brought him up there or if he came up on his own or -
Durham: I didn't bring him to the station, I have no direct knowledge of that.
Price: Ok. Alright. And so the approximate time - when's the approximate time that you finished all of your um - questioning of him?
Durham: Approximately 3:30pm.
Price: Ok, to kind of divide up the - just a minute. Was Officer Sudbury present while you were giving him the polygraph test?
Durham: No sir.
Price: Do you recall specifically what officers questioned him after you completed your questioning?
Durham: I have no direct knowledge of that.
Price: Ok. If I can kind of divide up the time periods of the - if I can sort of bring it into three different periods of time that you talked to him, if we consider the - the test portion the middle, and before that, the pretest the first part, and then after the middle the third part. Do you understand what I'm talking about? If we could divide those three periods of time?
Durham: Ok.
Price: Ok. Now during the - the pretest or the first portion of that, um - how long did that part last?
Durham: I wa - I wanna give you a thorough, accurate, comprehensive, precise answer, if you'll give me just a moment.
Price: Sure.
Durham: Um -
Price: If you need to refer to your documents, go ahead.
Durham: Yes sir.
(pause)
Durham: Giving you as best estimate as I possibly can, I believe I started my interview with him at approximately, uh - maybe 1:20pm. Uh - we had a number of papers to uh - go over and complete. Such as his advice of rights, the release form, uh - I tried to be very careful and thorough and make certain that he understood. I even explained where it said - I thought he might have had problems with, such as threats or coersion, I explained how that was pressure or force. Uh - I - it was not a hurried interview, for that reason. I wanted to be very careful with him. So, I'm gonna say that probably I spent as much as uh, 50-55 minutes before I did the first polygraph chart. Uh - formulating the questions, uh - explaining the conduct of the test, instrumentation, uh - I tried to answer all his questions as best I could.
Price: Alright, prior - you had previously testified that the rights form that he signed was signed at approximately 1:40pm and the first chart was completed at 2:20pm.
Durham: Um hmm.
Price: There was a time period, I think you call it the pretest interview -
Durham: Yes sir.
Price: - Where you discuss with him -
Durham: Um hmm.
Price: And during the pretest interview, he denied having commited these murders, is that correct?
Durham: That's correct.
Price: Alright. Um - do you know approximately how long the pretest interview part lasted or do you consider going over the polygraph forms and the questions, is all that considered the pretest interview?
Durham: Yes.
Price: Alright. So when - so the pretest portion, that would have been the first portion, the middle portion would have been the test itself, and the conclusion of the third test um - I think you indicated you talked to him for approximately another 45 minutes?
Durham: Correct.
Price: Ok, and during that 45 minutes, he continued to deny his involvement in this crime, is that correct?
Durham: Um. Not completely, there was a period of time when he stopped answering.
Price: Alright. Well you're - the report that we have says, "During the post test interview, the subject denied any involvement in this crime." That's - is that the language on your report?
Durham: That's correct.
Price: And that - is that accurate?
Durham: Do you want me to read the report?
Price: No sir, I want you to answer my question, please. This is the statement that says on the first line of your report, I'm asking you if that's accurate.
Durham: If you'll read - yes sir, the first sentence is correct.
Price: Alright. Alright, so during this 45 minute period of time, he de - denied his involvement in the cime.
Durham: If you'll read on, you can see where it said - I wrote that he ceased to deny his involvement after a period of time.
Price: Alright, are you aware that the Judge on Fri - on Thursday ruled that your conclusion that he ceased to deny his involvement so it's admission through absence of denial, that does not meet any test in Arkansas law or under the U.S. constitution.
Fogleman: (mumble)
Durham: I didn't say that, you said that.
The Court: Well, I'm not going to let that stand as, matter fact I think they call it absent admission, admission by silence - no, I'm not going to allow that to detour him.
Price: Alright. Thank you.
Fogleman: We understand that, your Honor.
Price: Alright. Um - Officer Durham, do you have a copy of the tape recording that you made during your entire interrogation of Mr. Echols?
Durham: I didn't tape record his interview.
Price: You didn't tape record any of his interview with you?
Durham: No.
Price: Alright. Ok, and after he talked with his mother, he again denied his involvement in the murders?
Durham: Correct.
Price: Alright. Alright, besides the - the one page type written report we have, do you have any other notes concerning specifically, um - all the questions that you asked him and all the denials he made during this approximately two hour period of time that you talked with him?
Durham: Yes, here are my hand written notes which say essentially the same as the type writtens.
Price: Alright, if I could approach the witness?
The Court: Alright.
(mumbling)
Price: Alright, you have one page of hand written notes?
Durham: Yes sir.
Price: And this summarizes the - the uh, pretest conversations you had with him plus the 45 minutes you had after the test?
Durham: Correct.
Price: Um - one moment, your Honor.
(pause)
Price: No more questions at this time, your Honor.
Fogleman: When his mother came in, did she tell him to - to not say anything?
Durham: To the best of my recollection, she did and she made other statements.
The Court: Well, that wouldn't be admissible either gentlemen.
Fogleman: I understand, your Honor, I just wanted the first one.
The Court: Alright, anything else?
Fogleman: Not of this witness, your Honor.
(mumbling)
The Court: Uh - do you have anything else?
Price: Uh - no sir, not at this time.
(mumbling)
The Court: Are you going to call another witness in this hearing?
