THE COURT: Let the record reflect that this is a hearing out of the presence of the jury and in-camera.
MR. PRICE: Judge, the next witness we intend to call on behalf of Damien Echols would be Chris Morgan.
In talking with Scott Emerson, who the Court has appointed to represent Mr. Morgan, Scott informed the Court as well as all attorneys involved this morning that it's Mr. Morgan's intent if he's called to the stand to exercise his Fifth Amendment rights pursuant to his privilege against self—incrimination.
It's the position of Mr. Echols that we should be allowed to call Mr. Morgan to the stand in order to do this. We quote from U.S. versus Murdoch, a l923 U.S. Supreme Court case, that says, (READING) A witness other than the accused has no right to refuse to take the stand. It is incumbent to claim the privilege as to each question asked. Failure to do so will result in a waiver of the privilege.
It's our position we should be allowed to put Mr. Morgan up on the stand and we should be allowed to question him. In addition another basis to support this is that we had the in-camera hearing last week at which time Mr. Morgan took the stand. He initially (3074)
(Page 3075 is missing)
matter last week.
MR. FORD: We would argue on behalf of Jason Baldwin that we are entitled to call this witness and that he must invoke the right of the Fifth Amendment privilege to each and every question. If he fails to do so, it is waived. He has previously been questioned under oath in this court and did not invoke the privilege of the Fifth Amendment and. therefore, it is now waived.
It is -- a certified copy of the transcript is available. It is not even hearsay under Rule 801, that those statements should be allowed to be read into the record and we would proffer at this time the statement made by Chris Morgan on direct examination while being questioned by Mr. Davidson as part of our proffer in this, and we will provide those pages to the court reporter. We have a certified copy of the transcript which was prepared by the substitute court reporter who was here on that day.
And, your Honor, also as a matter of -- we would like the record to reflect this is the first in-camera hearing that has been conducted in this case outside the hearing of the press and public. This Court has continually held in-camera hearings out where everyone can hear, but this is a hearing which has been (3076) deliberately orchestrated to be outside the hearing of the public.
It is also my understanding that the Court is issuing a gag order which prohibits anyone from telling anybody at all that this Court will not allow us to call Chris Morgan. and thus there is no answer to why Chris Morgan was not called, and you are prohibiting us from telling the press that the State of Arkansas objected to this evidence and this witness, and that you would not allow us to question him and you would not allow us to discuss your ruling at all, and this is a public trial which has been continually played out in front of the press, and at this point in time when there is evidence that is detrimental to the State, it is being done in private.
THE COURT: Anything else?
MR. WADLEY: It is my understanding, your Honor, that before the Court -- first of all, I think the law is clear that the defendant has to take the stand in order to invoke his Fifth Amendment rights -- the witness -- excuse me.
Secondly, there has to be first an inquiry made by the Court to determine whether or not the defendant is entitled to make that claim. I mean a witness. A witness may not just make a blanket statement (3077) requesting the Fifth Amendment and then invoke his protection. There has to be a showing why the witness is entitled to claim that privilege.
Up to this point in time, there have been no statements by the witness for the Court to make a determination that he is entitled to make that claim. There's been talk from his lawyer about the fact that there's some drug charges in Memphis which this may in some way impact that, but there's been no showing as to why, how. Until that's done, I don’t believe we can make a determination as to whether or not he is even entitled to make the Firth Amendment claim.
THE COURT: Anything else?
MR. EMERSON: Your Honor, I would like to make several statements. First of all, I was appointed, or my law firm was appointed Thursday after it was my understanding that Mr. Morgan prior to getting on the witness stand had requested that he have a lawyer appointed to represent him regarding him testifying in court. Our office was appointed on that day.
We conducted a review of the -- of some of the information pertaining to Mr. Morgan and it was provided to us by the prosecution as well as by defense counsel.
It is too simplistic in my -- the way that I (3078) perceive things, your Honor, for them to say that the Court has to make a preliminary determination as to whether or not this is a valid invoking of the Fifth Amendment.
On the one hand, they are saying that he has confessed to killing these boys, and they are trying to use these statements that he made out here to the police in California as probative evidence that somehow he is guilty of these murders.
And so from the testimony that was given the other day by Mr. Morgan, the standard surely is not, will it in fact incriminate him but may it tend to incriminate him if he gets up and testifies about this charge.
There are also charges pending against this gentleman that are pending in the federal court in the State of Tennessee. I have been on the telephone and I have talked extensively with his attorney from Memphis on the charge who was shocked and appalled that he did not have some counsel appointed when he requested an attorney being appointed.
The concern I have is by this man getting up there and claiming the Fifth Amendment on every charge or on every question that is asked, that's -- that's -- that's really not my gripe. The manner in which he (3079) does it is not my concern. This is not Chris Morgan's fight between the State of Arkansas and these defendants.
I've been advised by my client. I‘ve been advised by the attorneys that there may he also in addition to possibly incriminating himself pertaining to these events, pertaining to this case, that there are some overlapping facts regarding the federal court charges.
If the standard is that the Court has to make some preliminary determination as to whether or not he can incriminate himself by making statements, my response to that is that by him getting up there on the witness stand and answering any question at all pertaining to this, there certainly -- it may tend to incriminate him on these charges and also can be used against him in the federal charges.
I have advised him and upon my advice he has requested the Fifth Amendment. The Court -- clearly from the testimony that was given the other day in court -- the Court felt the need to appoint our law firm or someone to represent this fellow, and I have advised him to take the Fifth Amendment. The manner in which it’s done is not my concern. That's y’all's fight. But as far as the waiver of the Fifth Amendment is concerned, we are reasserting the Fifth (3080) Amendment right now.
MR. WADLEY: Judge, they talk about these federal charges in Memphis. We don't know what the charges are, when the charges were filed, what the allegations in the charges are, when the alleged contact that he has been charged with was contended to happen. All these things -- those are things that you have to inquire into before you can make a -- give a blanket Fifth Amendment. There has to be a reason for invoking it and I don't know --
MR. EMERSON: -- What Mr. Wadley is saying is he's got to get up on the witness stand and incriminate himself so the Court can then determine whether or not it's incriminating and can be used against him if he makes these statements.
THE COURT: I think I heard enough last week and in the offer of proof to make that determination. Anybody else want to say anything?
MR. PRICE: Yes, sir, I'd like to quote the law. Lockin versus State, 145 Arkansas 415, 224 southwest 952, a 1920 case. (READING) A trial court should not accept a witness's blanket assertion of the Fifth Amendment privilege in response to any and all questions asked. Rather once the witness has claimed the privilege, the court must determine whether the (3081) claim is valid in relation to the subject area to which the inquiry is sought.
In addition Dunklin versus Citizens Bank of Jonesboro 921 Arkansas 588, 727 Southwest 2d l38. (READING) To place proper limitations on the assertion of the privilege, courts have required the party asserting it, quote, to make a particularized showing of the potentially incriminating nature of each question asked or document sought. And blanket refusals to answer questions in response to a valid discovery request are insufficient to relieve a party of the duty to respond to each question asked.
THE COURT: Anything else?
MR. FOGLEMAN: Your Honor, I would like to add -- I believe Mr. Ford said the State objected to this witness. What the State objects to is them wanting him to get on the stand in front of the jury and the whole world and exercise his Fifth Amendment rights which as the Court knows even though they'll be advised of the privilege, it will appear to the general public and probably to the jurors that means he must have done something for him to exercise that Fifth Amendment right, and we object to that being
done in the presence of the jury and in the public.
Now, in the proffer the other day, number one, he (3082) was compelled to be here. He was under subpoena. He was compelled to be here. He was not free once he took the stand to get down and walk off the stand. He was not advised of his rights. He asked for a lawyer during that --
THE COURT: -- He asked for a lawyer when he took the stand and after about the second or third question. And I directed him to answer the question. It was that reason I decided he needed to have a lawyer appointed.
This has been the most bizarre case I have ever seen in my life. There's every kind of little incidental matter that's come up throughout it. In this case I would prefer the man on the stand, direct and order him to answer the questions. I'm inclined to do that.
I'd also want to point out that the defendant's lawyers -- Mr. Echols' lawyers -- violated Rule 509 by disclosing the identity of a confidential source.
We conducted an in-camera hearing as provided by the rule. The Court instructed the parties that no mention of -- is it Byers -- Mr. Byers' cooperation with the Memphis Police Department, West Memphis Police Department or the Drug Task Force would be mentioned and yet it was mentioned. (3083)
That's just one example of a thousand things. Here in this particular case I don't see any problem whatsoever in having Morgan get up there and say, when responding to the questions asked by the Oceanside Police Department, did you confess to this crime. He can simply answer no. I told them I was going to lie and I lied to them.
MR. WADLEY: Judge, there was a case that Mr. Davis and Mr. Fogleman had given me the other day and I can't recall the case '' do y'all remember the name of the case -- it was Valdez versus State -- I don't have it in front of me. It was my recollection that the case talked about -- the better rule was -- in these type situations the better rule was to have that person be able to put that proof on, be able to have him testify.
THE COURT: I am reading Rule 512, and I would assume that the Fifth Amendment privilege is one of the most sacrosanct privileges that a person has under the constitution, and Arkansas Rule 512 says that where you claim the privilege and where it is permitted, that the jury -- (READING) In jury cases proceedings shall be conducted to the extent practical so as to facilitate the making of claims of privilege without the knowledge of the jury. (3084)
And that is apparently what I'm attempting to do right now.
MR. FORD: Your Honor, those privileges are privileges given under rule -- the five hundred series -- which are attorney-client privilege.
THE COURT: You need to read the whole series of five hundred. (READING) Privilege recognised only as provided except as otherwise provided by constitution or statute or by these or other rules.
So it includes any constitutional rule of privilege as well. It goes on to say you can't refuse to be a witness, you can't refuse to disclose any matter or refuse to produce any object or writing or prevent someone from doing so.
MR. WADLEY: I fall back to what I said earlier. There's no question even though Mr. Emerson says it is not a good idea. It's the law. The Court has to make the determination as to whether or not he's even entitled to make that Fifth Amendment claim. In this case he's saying, I never said that. That's a lie. I never said that I -- you know, I said those things, and it's a lie. I told them before I said it it was a lie and told them after I said it it was a lie. So how does that tend to incriminate him?
MR. EMERSON: Judge, they are saying that he (3085) murdered these kids --
MR. WADLEY: -- I never said that.
MR. EMERSON: That's the very reason you want to put him on the stand, isn't it, so you can take evidence away from your client and put it on this other guy. I cannot imagine a situation where it could possibly be more incriminating, your Honor, or may tend to be incriminating.
This is a good faith basis for this man to say, this is not my fight. This is a trial against other defendants --
MR. WADLEY: -- Judge, he's -- he doesn't have any basis --
THE COURT: -- This is part and parcel of the problem of wide-open discovery where a defendant in a big controversial case where there have been forty or fifty suspects identified, can then parade in every possible suspect and say, he did it. Not my man. It just seems to be something absurd about the whole procedure we're following here, but to me the better procedure would be to have Morgan forced to answer the questions. And I am inclined to do that right now but I'm not making that as a ruling right now.
MR. EMERSON: Judge, it you, you know, they're trying to say that these statements that he made out (3086) there is somehow evidence that he admitted or confessed to these crimes.
I personally have read the summary of the transcript. I don't think it constitutes an admission or confession, but how can they say there may not be some possibility of incriminating himself by getting on the witness stand when they are the ones who are wanting to call him and use it for the purpose of incriminating him so they can focus attention away from their own client. To me that is absolutely nonsensical.
MR. WADLEY: Judge, what is nonsensical is for him to say it's not an admission, it is not anything and then claim the Fifth.
MR. EMERSON: It may tend to incriminate him.
MR. DAVIS: There's one other thing I think the Court needs to look at. We have -- I told Scott -- I may have told all of them, but we got the tape last night, the missing four hours or whatever. And we viewed it and I don't know -- I know the Court is pushed on time, but it might be helpful for the Court to look at it because from a practical standpoint and under 403(b) and balancing the prejudicial versus probative nature, when you have got a witness who says in a proffer, sure I said it but I prefaced it by (3087) telling them I was going to lie to them before I said it. You don't have the normal indices of truthfulness.
And then you've got a situation where we are prohibited -- because there are so many references to the polygraph in that videotaped statement that you just -- there's no way to make heads or tails of it if you remove references to polygraph. It's not just the questioner. It is his responses that also contain references to the polygraph, and if they put the evidence on, if they put him on and he is required to testify, yeah, this is the situation. What the Court was saying last week, well, yeah, then the State can
put the tape on so the jury can get the full picture. If we put the tape on, then we're going to get -- if it is put on in its entirety, there's references to polygraph, there's things that are not appropriate for the jury to hear --
THE COURT: -- I think I've heard enough. I'm going to make two rulings. One is I'm going to rule that Morgan will not be compelled to testify under Rule 512. And I heard the proffer last week that the subject matter of that proffer seemed to me to be a young man who admitted that he lied and that those lies could possibly in some way incriminate him if he (3088) were forced to testify.
The chief basis of my ruling will be Rule 403, that even though the evidence might be -- might have some probative value, that whatever probative value, if any -- and I doubt it really has a whole great deal -- is substantially outweighed by the danger of unfair prejudice and by confusion of the issues. For that reason, Rule 403, I'm going to deny the tender of testimony.
MR. FOGLEMAN: Your Honor, before we go back in there, we need to the deal with the issue -- I expect that after we go back out there in front of the jury, they will try to tender either the videotapes or the transcript of his testimony from the other day.
THE COURT: That's hearsay.
MR. FOGLEMAN: That's what our objection is.
THE COURT: And also the same 403 ruling that even if it is relevant in any sense of the word and has any slight probative value, that the confusion and the unfair prejudice to the State's case would be outweighed by that offer of evidence.
MR. DAVIDSON: Your Honor, we would like to add to our proffer the other tape that came in last night, to have that added to the proffer.
THE COURT: That will be permitted. (3089)
MR. DAVIS: Your Honor, we would move in limine that the defense counsel not walk out there and make any reference to the introduction of this for purposes of show, introduction of these statements or whatever in the presence of the jury.
THE COURT: I'm going to make a ruling that anybody that mentions to the press, the jury or anyone else -- Mr. Morgan or this in-camera hearing which is pursuant to the rules of procedure and an exception to the rule that allows press access -- that they will be held in contempt and I mean it.
MR. WADLEY: Judge, so we pick and choose the things we are going to be held in contempt for and not --
THE COURT: -- I think I made it real clear. I haven't put any kind of gag on you on anything at all, but this I'm going to.
(RETURN TO OPEN COURT)
THE COURT: Court will be in session. Call your next witness.