JONESBORO, ARKANSAS, FEBRUARY 28, 1994, AT 9:30 A.M.
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
MR. FORD: Your Honor, on the record before we get started, I wanted to inquire of Brent or John under their ethical obligation regarding truthful testimony, to ask them if they believe that the statements previously given by Jessie Misskelley are true. Do they believe them to be true.
THE COURT: That's a little unusual.
MR. FORD: I know.
THE COURT: I would assume if they proffer a witness, that they‘re assuming that their testimony is true.
MR. FORD: I understand that. But, your Honor, due to the fact that they want to proffer a witness who may or may not be willing to testify and may have some legal reason that he could not testify, I still would like to -- I believe he is a witness that they want to offer but they may not offer due to his -- Jessie's own ability to be reluctant. But I still would like for them -- I'd like for them to state whether they believe his statements that he has given to be truthful.
THE COURT: Do you want to respond to that?
MR. DAVIS: Judge, it's the State's position that (1459) if we proffer testimony, that testimony -- we will not proffer testimony to the Court that we don’t think is
accurate.
MR. FORD: Does that mean truthful?
MR. FOGLEMAN: Your Honor, I think -- and Mr. Ford may be -- any -- no witness' testimony, I believe, is one hundred percent accurate with the facts. No witness. Every witness makes mistakes in their testimony. I think it's fair to say that we believe the substance of his testimony is truthful and accurate.
MR. FORD: All right. That's good enough.
MR. PRICE: Judge, I'd like to put something on the record at this time. At this time, I'd like to move to dismiss the charges for lack of probable cause. Citing the Rhodes versus State case that was decided on January 31, 1994, by the Arkansas Supreme Court, 315 Arkansas 658. In the Rhodes case -- my point goes to -- the State -- the main probable cause the State had was the confession of Jessie Misskelley. Mr. Misskelley -- Dan Stidham argued during that trial that under the Juvenile Code provisions in order -- nine twenty—seven three seventeen -- in order for a juvenile who's arrested to waive his rights, his parent also has to sign the rights. (1460)
The State argued at the time that a sixteen-year-old -- adult court -- circuit court charges can be filed against that juvenile. That was the argument that the State put forth and that was the reason why the Court did not suppress Mr. Misskelley‘s confession.
In the Rhodes case it's essentially the exact same facts. A sixteen-year-old signed a rights waiver form, but his parents did not sign the waiver form. At the time his rights were signed, there were no formal charges filed yet.
In our case when Mr. Misskelley gave his confession at 2:44 on the day he was arrested, formal charges had not been filed in circuit court. Therefore, the rationale of the Rhodes case would apply. Therefore, Mr. Misskelley's confession should be suppressed. Therefore, Mr. Misskelley's -- that was the only basis for probable cause for arresting my client and, therefore, the charges should be dismissed for lack of probable cause.
THE COURT: In this case that'll be denied. I don't know what effect it might have in Misskelley's case, but as far as these two defendants, that'll be denied.
MR. FORD: I'd like to join in that motion on (1461) behalf of Mr. Baldwin.
THE COURT: Okay.
MR. FOGLEMAN: Your Honor, we would like to say for the record in this particular case, number one, the Rhodes case dealt with a case in juvenile court. It was transferred to juvenile court, and it was suppressed in juvenile court.
The second factor is, is that these defendants don't have any standing to challenge --
THE COURT: That's what I said. It‘s denied as to Echols and Baldwin.
MR. PRICE: The standing we have is that's the probable cause for our client being arrested.
THE COURT: Are you trying to say that a juvenile or a youth couldn't testify against your clients?
MR. PRICE: I'm saying that if you knock out Mr. Misskelley's confession, there was absolutely no basis for probable cause for arresting our clients in the first place.
THE COURT: I'm not going to knock it out. I'm saying it's just as good as gold in the case against your two. And, frankly, if it was in juvenile court, I can distinguish that easily because they were tried as an adult. It was my ruling that as adults, there was no necessity for a parent's signature. (1462)
MR. PRICE: At the time the charges were filed, at the time of the confession, Mr. Misskelley was not yet charged as an adult. The information had not been filed.
THE COURT: That might be a point for Mr. Misskelley to raise in his appeal, but as far as your two clients are concerned, it doesn’t persuade the Court at all.
MR. FORD: Lastly, your Honor, we would renew our motion for severance for reasons previously stated.
THE COURT: Denied.
MR. DAVIDSON: We would join in that also.
THE COURT: Denied.
MR. PRICE: And one other thing. Judge, any arguments made on behalf of Mr. Baldwin unless Mr. Echols specifically objects to those, we want those to be joint arguments.
THE COURT: I'm not going to allow them to be joint arguments unless there's a comment on the record that you adopt them. If you want to make an objection, make an objection. State your reason for it. If you want to concur in an objection made, then you stand up and say that you adopt that. Otherwise, I'm not going to accept it.
MR. FORD: I would like that too, your Honor. (1463)
MR. PRICE: All right. That's fine, Judge.
(RETURN TO OPEN COURT)
THE COURT: All right. Call the jury in.
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY)
THE COURT: Gentlemen, it should be apparent to you that one of the original twelve jurors is not present and hasn't been here and it is now 9:45. The clerk was instructed to call the number that we had for Mr. Billingsley, who is the young Air Force man. It was apparently his sister‘s address, and she informed the clerk that he was not staying there, that they thought he was staying in an apartment somewhere, where they did not know, and that they had no way of reaching him. I don't know what else I can do.
MR. FORD: I'd like to have the sheriff go out and attempt to find that juror as opposed to just calling a number and that not even being the residence where he is residing.
THE COURT: He lives in Florida to begin with.
MR. WADLEY: He was not one of the jurors in the last group selected, and they were instructed to call the juror phone, or the phone. There‘s no listing on the phone. There‘s no way to call over the weekend. It may be a situation that he did not know how to (1464) contact to see if he was supposed to be here this morning.
THE COURT: Did you have a message on the machine?
THE CLERK: Yes, sir.
THE COURT: What was the message?
THE CLERK: There were two messages. Potential jurors were excused. Those that were impaneled for the State of Arkansas versus Baldwin and Echols were to report at 9:30 this morning.
MR. FORD: Your Honor, I'd like for the Court to take a recess and have someone go to his address and make an inquiry as to his whereabouts before this matter proceeds any further.
THE COURT: I'm going to send the city police car by the only address I've got for him. If that doesn't do, I‘m going to start with one of the alternates, and we're going to proceed.
THE CLERK: I have no physical address for him. I have a post office box. I do have a sister's telephone number.
MR. FORD: She has a physical address, doesn't she?
THE CLERK: I have no idea.
MR. FORD: I think they can find him. If this (1465) was their star witness, they'd find him. We'd ask that the same consideration be given.
MR. DAVIDSON: We join in this motion.
MR. DAVIS: Your Honor, our position is that's why we select alternates. We've got an alternate that is ready, willing and able to take over.
MR. FORD: Your Honor, we impaneled alternates in the event of some calamity.
THE COURT: As far as I‘m concerned, it is a calamity. He’s not here.
MR. FORD: Your Honor, we don't know why he's not here. We'd like an inquiry to be made before we proceed. And we -- and ten minutes in the interest of justice --
THE COURT: I'll give you ten minutes.
MR. FORD: I‘m telling you, your Honor, that is an abysmal length of time.
THE COURT: That would make twenty-five minutes. Well, we'll send someone out there and see what they can do.
MR. PRICE: Your Honor, we would like to request that the Court invoke the rule known as Rules of Evidence 615, exclusion of witnesses, at this time. I anticipate the State will request that Rule 616, the right of the victims to be present during trial be (1466) applied in this case.
We have no objection to the victims remaining in the courtroom during testimony, but we still think in spite of that rule we want them excluded as far as talking or discussing any of the testimony with anybody else until they are released.
MR. DAVIDSON: Including the press and discussing it among each other.
THE COURT: That's fine.
MR. DAVIDSON: We'd request that the rule be made prior to opening.
THE COURT: I'm going to do that right now.
(JUROR BILLINGSLEY ENTERING THE COURTROOM)
(JURY BEING SWORN BY THE CLERK)
(WITNESSES BEING SWORN BY THE CLERK)
THE COURT: To the witnesses who have just been sworn, the Court is going to invoke what we call the rule. That means that all witnesses will be directed that you are not to discuss your testimony among yourselves before or after you testify, and for that matter you're not to discuss your testimony before or after you testify with anyone, including the media. You may discuss your testimony with the lawyers involved in the case if you choose to do so. Any violation of the rule could not only subject you to (1467) contempt of court but could disqualify you as a witness.
You'll be asked to step back to the witness rooms. I am going to make an exception for the parents of the victims in this case, but you will be directed that while you will be allowed to remain in the courtroom, you are not to discuss your testimony before or after you testify with the media or anyone else, except the lawyers.
(WITNESSES LEAVING THE COURTROOM AT THIS TIME)
(THE FOLLOWING CONFERENCE TOOK PLACE AT THE BENCH OUT OF THE HEARING OF THE JURY)
THE COURT: Gentlemen, I read the facts in the Rhodes case, and I can distinguish it from the facts and circumstances of this case, based upon it being in a different Court.
(RETURN TO OPEN COURT)
THE COURT: All right, you ready to proceed, gentlemen?
MR. FOGLEMAN: Yes, sir.
THE COURT: All right, you may state your case.
Excuse me, Mr. Fogleman, before you get started I need to make one other announcement. Ladies and gentlemen, we've got a pretty good audience and you‘re welcome in the courtroom. This is a public (1468) trial, and you are welcome.
I am going to make one request. And if it has to change from a request to an order, then that's what will have to happen. I'm going to request that you remain in the courtroom, that you not move about and go in or out, except during times of recess. And I suspect that we'll have a recess just about every hour to hour and fifteen minutes. If you can't stay that long, then you probably don't need to be in here anyway.
That's a request at this time. And one of the reasons for the request is that machine out there makes noise when you come in and out, and it's disturbing. So we don't want too much of that, or as little of it as possible. So please, if it's an absolute emergency, you're dying, and you have to get out, then I'm not even going to notice you when you leave. But -- so please try to avoid that. Thank you.
All right, you may proceed, Mr. Fogleman.
