The Court: Let's proceed with them. Alright, if you're ready, I'm ready. [mumbling] Pardon?
Alright, let the record reflect that this is a hearing out of the presence of the jury. The subject matter of the hearing will be newly found evidence. I guess it would be your move first, Mr. Davis.
Davis: Your Honor, as the Court's aware from the discussions yesterday, the necklace that -- and I don't know if you all want to --
The Court: I think you need to just describe the whole set of circumstances from last week when you first announced the possiblity of additional scientific evidence. Just state for the record the full course of events.
Davis: Your Honor, as the court's--
Unidentified: I'd like to interrupt you, Mr. Davis -- Judge, we talked previously before, just a few minutes ago -- Judge we would like if we could to have this [? 01:06] conversation of the court in chambers if we could.
Davis: We don't have any objection, Judge. Whatever the court wants to do.
Unidentified: That doesn't mean to say, your Honor, we can't come back out this and discuss this in open court outside the presence of the jury, but for right now I think it might be appropriate if we were able to talk to the Court in chambers.
The Court: Alright, let's step back here for a few minutes.
The Court: Let's proceed. Alright Mr. Davis, go ahead and state the situation or the facts.
Davis: Judge, as of last Thursday when some of the officers and Mr. Fogleman were reviewing and looking back through some of the evidence this necklace that had been taken from the defendent Echols at the time of arrest there was noted to be some red spots on it which were questionable. That necklace was then sent down to our state crime laboratory which did some tests which indicated that in fact that those items on that necklace were blood and because of the small quantities it was immediately shipped off to the DNA laboratory in North Carolina. I think we learned probably around 1:15 or 1:30 that afternoon that they had discovered blood on it at the Arkansas State Crime Lab and I think at a bench conference up here that information was related to Defense counsel. Monday after -- let's see --
The Court: That was Friday.
Davis: OK, that was Friday -- trying to -- let's see -- is today Thursday?
Price: Today's Thursday.
Davis: Tuesday afternoon we learned that -- around 4:30 that afternoon when we were preparing for closing arguments we received a call from Genetic Design which indicated that they had been able to isolate two separate DNA sources on that particular necklace. One DNA source being consistent with the DQ-Alpha type, which is a system for typing DNA, consistent with Damien Echols. The other DQ-Alpha type source that was found on that particular necklace was consistent with the victim Steven Branch and also with the defendent Jason Baldwin. They then indicated that they were going to attempt to run what is called an amplification process on the sources in order to amplify and hopefully do a more specific test and that's what we waited for yesterday and around, I think all of the attorneys were advised about simultaneously, that around 3:30 or 4 yesterday afternoon we found out that the amplification process had not been successful so we were left with evidence which the State is requesting that the Court allow us to introduce as being newly discovered evidence that would be to the effect that there was blood found on this necklace that is consistent with the DQ-Alpha type of the victim Steven Branch and that that DQ-Alpha type occurs in approximately 11% of the Caucasian population. And that's basically what the State is requesting that the Court allow us to introduce. We realize that because of finding this evidence at this point in time that the Defense, of necessity, needs to be able to contact some people who are familiar with DNA, possibly bring in an expert, whatever is necessary in order to give them adequate opportunity to look into this issue, to examine the results and to be prepared to deal with it. The State does not object, we would prefer to get this matter over with, but as important as crucial as evidence of this nature is we feel we'd be remiss if we did not make all efforts to try to bring this before the jury so they can make a determination on all the evidence.
The Court: Alright, Mr. Price, do you want to respond?
Price: Yes, your Honor. It's our position for several reasons, first of all it's our position that the Court should exclude and not allow this evidence based on Rule 403 -- exclusion of -- although evidence may be relevant, it should be excluded on the grounds of prejudice, confusion or waste of time. Another key point here since based on the DQ-Alpha types it's my understanding, and Mr. Davis and Mr. Fogleman although they have not received a written report they have relayed the information that they received from the lab to us. It's our understanding that the DQ-Alpha type on both Stevie Branch and Jason Baldwin is a 1.2,4 which is current in approximately I believe -- is it 8% or 11%?
Price: 11% of the population. There is also -- besides -- there's actually two spots of blood on this particular pendant. There was one of this particular type and there's another one that had my client's blood on there. We may consider calling -- if the Court does allow this then that would necessitate us in calling additional witnesses to reopen our part of the case in defense on this particular issue. I think it's our position that if it's Jason Baldwin's, if it's consistent DNA with Jason Baldwin and also Branch that it may be not relevant at all. [mumbling] Judge, part of our defense in this matter would be that sometime during the time period approximately a month or two before the arrest that besides my client having access to this pendant that also Jason Baldwin had access to this pendant. If that is indeed Jason Baldwin's blood on this pendant and not Stevie Branch's then this evidence is of no value at all and not relevant, it should be excluded and not considered by the jury at all. I think therefore if it is admitted into court it could tend to confuse the issues, be unfair prejudice and mislead the jury in those issues. It's our position that, first of all, we're requesting that this not be allowed. The statements that Mr. Davis made in connection with how the evidence was found is correct and we're not disputing the fact of a when it was actually sent off, I think it was initially sent to the crime lab and then onto the DNA lab, but it's our position that this is something that they have had in their possession since the arrest of my client. It's something that is not on the exhibit list that were provided to us. It's something, it's not like the -- there was some reference to, I don't know if it was actually introduced at this trial, there was a stick that was discovered approximately a week before voir dire and I think that that stick if the State attempted to use it that might have been considered newly discovered evidence because the State just got a hold of that that was subsequently tested and there was no forensic value on that. But this is something that the State has had in its possession all this time, and that's why we object to it being introduced at this particular late date and we think it also would violate the due process rights of my client.
The Court: How would it violate due process? I thought that's what we were here for.
Price: Well, yes sir, we are here for due process, your Honor, but our entire defense has been based upon the State having the burden of proof, my client having the presumption of innocence, and we have built our defense around the evidence the State was attempting to put forth. And if the State comes in at the last minute at this point with some newly discovered evidence that certainly would have to shift the way that we have to deal with this particular evidence.
The Court: Assuming the Court allowed the evidence, there's two basic remedies, either a mistrial or a continuance. Which or what remedy are you looking for? Assuming I allow it.
Price: Specifically, we would need to discuss even further with our client before making that decision. If the Court does grant a continuance, obviously we, as soon as we, let me back this up. On I guess it was actually Tuesday was the first time, actually after court adjourned was the first time that the results came back as far as the DQ-Alpha results on this item and at that time or actually yesterday morning Mr. Davidson and I attempted to contact at least four or five different DNA experts and we've been very diligent about trying to find a possible expert. Obviously at the time of a continuance we would need to get not only the report but the raw data and all the materials that Genetic Design has to send those both a copy to us plus a copy to an expert and we --
The Court: You indicated you had a lady in Cincinnatti somewhere --
Price: We've talked to someone in Maryland, we also had talked to two other individuals. Several of the labs that we had talked to will not testify as experts unless they're able to test the same substance. And of course in this case because if Mr. Davis' statements are correct that when they attempted to do the additional DS180 test that that apparently destroyed, it consumed the remaining sample and so --
The Court: You are aware that that's not uncommon in DNA testing.
Price: I am aware of that, yes sir, that is correct. But the fact that that may not be uncommon still it presents my client an obvious disadvantage in that we will not be able to get an expert to test the same substance in order to come in here and challenge the opinion of the State's expert. Obviously we would sort of want to pursue talking to an expert of our own and that expert may be willing and may be able to come in and look at the data that's performed on the other test and come in here and testify. And that's certainly what we're pursuing in Waiting on phone calls right now.
The Court: I mentioned to you in the back room the Dumond case from Forrest City where the issue was essentially the same that the sample that had been utilized to do the DNA matching had also been either lost or destroyed or consumed.
Price: Yes, sir.
The Court: Seems like there was a --
Price: The Prater case I think is the one, the Arkansas case -- there have been one or two other --
The Court: Yeah, the Prater case, wasn't there the same issue in Prader, that it had been consumed?
Price: We're checking on that right now.
Davis: Judge, on that one issue as far as consuming the sample, had it been tested earlier, let's say immediately after arrest, I don't think the State would have been under any compulsion to provide the Defense with that particular item, to insure that all of it was not consumed at that point. I think that once those items were taken into evidence as long as there's nothing intentionally done to try to destroy evidence for the purpose of defeating a defendent's right to properly examine them. As long as it's a normal scientific test and it's consumed in that process, I think it's perfectly appropriate and it's, like the Court says, it's just he results that are available to be reviewed by the defense.
The Court: How much time would you need? Assuming I allow it?
Price: I talked with three individuals yesterday and this morning. We're waiting on a phone call right now, Judge. So we don't know at this point.
The Court: Alright, Mr. Ford, do you want to --
Ford: Your Honor, first off, we would note on the record Tuesday afternoon when we recessed and the jury was sent home that it was agreed and indicated by the State and by the Court that any of this new evidence would be considered only as to the defendant Damien Echols. It would not be considered as to the defendant Jason Baldwin.
The Court: I think you're absolutely correct, and I think our initial supposition was that the DNA grouping was Mr. Echols and two of the victims and that Mr. Baldwin's wasn't even involved at the time. At least that was my understanding --
Fogleman: Your Honor, at that time we --
The Court: We didn't really know what that --
Ford: We didn't know a single result, your Honor.
The Court: OK.
Fogleman?: Other than blood.
Ford: All we knew was that there had been testing at the crime lab by Kermit Channel and that Kermit Channel had identified it as blood under a microscope by looking at it. But he had not done any testing on the blood.
The Court: I think he, didn't he indicate he didn't attempt to do any testing other than to identify it?
Fogleman: Because it's a small sample.
Ford: Your Honor, but that was still the decision of the Court. Before we knew any results, the decision was this would be considered only as to the defendent Damien Echols because this was a necklace he wore the night of his arrest. It was taken from his person, therefore any, any reference to Jason Baldwin in this scenario we object to because that's been the ruling of the court. Secondly, your Honor, it has no value. There's no value in any evidence to Jason Baldwin, cause the necklace was taken off the defendent Echols. There's no probative value and there's no evidence that could be inferred in any way as to guilt for Jason Baldwin. To inject his name into this issue would be inappropriate based upon first the Court's ruling and secondly the relevance or probative value that evidence would contain. Thirdly your Honor, we feel there was the continuance that resulted yesterday was an ex parte order -- that -- we were not contacted, Rob and I were not contacted. I understand from talking to Mr. Price and Mr. Davidson that they were not contacted and they were in their office the entire afternoon. Robin and I were on our way to Memphis but we had a car phone but we did not receive a phone call. Our office personel has not been able to give us a clear answer as to whether we were called or not. But clearly Mr. Price was not contacted even though he indicated he was in his office the entire time. That his first learning of it was from the media wondering why a continuance had been granted. Your Honor, we feel that was an ex parte continuance, that it was inappropriate, that it was contact with the prosecution with the Court without notification to us. That at that time the entire case had rested. The Prosecution put on its case-in-chief and rested. Both defenses put on their defenses and rested. Rebuttal had rested. The jury had all of the issues, all of the facts were prepared to decide the case, but a continuance was granted. No discussion was had as to whether the continuance was warranted or whether we should come in here today and do exactly what we're doing here now yesterday morning and had the jury back there and avoid -- the jury -- And the reason that's inappropriate, your Honor, is because the jury was not contacted but they were told to put it on TV and tell the jurors don't come in. On TV! On the radio. They're not supposed to even be watching the TV or listening to the radio.
The Court: Hold on, wait a minute. They're not supposed to be watching any news account of the trial. A public service announcement that the jury doesn't have to report is quite a bit different than a news account of the trial.
Ford: Your Honor, that is an issue that should have been discussed with all counsel and the Court to determine the most expedient and proper way to have that information disseminated to the jury, that was not done. Now we're in the situation where some of the jurors called in and said, "We hear from the TV we're not supposed to come in. What do we do? Is that true?" What were they told and by whom? Then other jurors came in, what were they told?
The Court: Two jurors reported.
Ford: Therefore, they had twelve who heard that means twelve people or having contact with outside sources --
The Court: You want a mistrial?
Ford: May I make my argument, your Honor?
The Court: I'm just asking you what kind of remedy you want.
Ford: Until the jury is polled and that information is determined I cannot make my answer on that, your Honor. But I feel that the jury should be polled and they should be asked what they were told and by whom to learn what information they had because this next point, your Honor, is that somewhere this evidence, what we're arguing about, was told to the press because it was accurately reported on Channel 8 Jonesboro television why the delay. Someone told them that evidence. And now the jury, in that same announcement, "Jurors, don't come in. We're waiting on DNA testing from a necklace worn by Damien Echols at the time of his arrest." That's improper. And whether that information has been heard by the jury we should know by polling. Next, your Honor, (We would state the?) evidentiary issue is not proper rebuttal.
The Court: It's not gonna be rebuttal, it will be the State allowed to reopen its case if I proceed in that fashion, so it won't be rebuttal.
Ford: Next thing, your Honor, we would argue that it is improper for them to reopen this case because they had this evidence the entire time. This is not surprise. This is not newly discovered evidence. They've had it in their possession the entire time. They just didn't do anything with it. That's not surprise; that's not newly discovered.
Price: We request a ten minute recess at this time.
The Court: Alright, go ahead and get your phone calls. You got any other points you want to raise? You can go ahead.
Ford: Yes, your Honor --
Price: Judge, we would object to anything going on right now.
Ford: Your Honor, it's not proper for Mr. Price to just announce to the Court he wants a ten minute recess.
The Court: Well, I want to know what his report is from his phone call too, so we'll take a recess.
Price: Thank you, your Honor.
[Audio starts aprubtly]
The Court: -- agreed on?
Ford: I think they are, your Honor. I prepared them.
Ford: Judge, we would like to talk about some of the logistics at this point of not reading the instructions. Let John argue for an hour and then everyone break and go home for lunch. As opposed to maybe perhaps reading the instructions, taking an early lunch, coming back and get an early start on the arguments and all of us argue contemporaneously.
The Court: What I was planning on doing was reading the instructions and then you can either argue or I can tell them to come back afterwards. I mean let them go to lunch and then come back and argue.
Ford: What I'd like to do is take an early lunch and come back and start around 12:30.
The Court: Oh, you're saying take a lunch break now?
Ford: No, you can read the instructions then take a lunch break --
The Court: That's what I just said.
Ford: Yeah, as opposed to us all arguing. One arguing and then a break and then two more --
The Court: Well do I -- Do you gentlemen want me to announce what, for the record, what we discussed? I mean there've been motions.
Price: Is the door shut Judge?
The Court: Alright.
Davis: It's the State's position, given as I understood the Court's ruling if the State proceeded with the evidence regarding the necklace, then the court was going to grant a mistrial as to Jason Baldwin and the State would be proceeding as against only defendant Echols. And it's the State's position that based on that understanding the State will not be submitting any additional evidence and will be prepared to argue the case upon instruction to the jury.
The Court: OK, well I indicated to all of you that that would be my inclination, to rule in that fashion, if you persisted in your offer of introduction of the DNA for a number of reasons. One is Echols would have been entitled to then confront Baldwin and they would be cross-implicating, at least at cross purposes. And based upon your arguments I would have granted, your repetitive arguments for severance, I would have granted it and granted a mistrial. But in view of your withdrawal of the tender of that evidence, we're able to proceed to jury instructions and argument at this time. Is that your understanding, gentlemen?
Price: Yes, sir, that's my understanding.
Ford: Once last time, your Honor, we do renew our motion for severance.
The Court: Based upon the other circumstances that will again be denied because it's not necessary at this point -- Alright gentlemen, what I propose to do is to read the jury instructions and to give the jury a lunch break and then you'll each be given -- I'm not gonna put any limit on your time for your arguments, I'd like for you to keep them within an hour though, it seems to me to be appropriate. Anything else?
Fogleman: You're not gonna hold us to that?
The Court: No. Is there anything else that you want to put on the record before we proceed?
Ford: Your Honor, we would request, again, that the jury be polled as to what they -- information they gathered yesterday about the reason for the delay. The reason that --
The COurt: I'll ask them, anytime if they've read any news accounts, watched any TV or listened to any -- are in any way been contacted by anyone at any time up through and including yesterday.
Ford: That will be fine, your Honor.
The Court: Alright, we'll do that. Let me look at these ones -- have you (previewed?) these? I mean, I'm ready to read them like you've given them to me.
Ford: Judge, your honor, we would again renew our request that you eliminate the instruction 401 regarding accomplices.
The Court: Well, I've kind of indicated to you that I would consider that if you raise that argument. You wanna be heard on that before we procced?
Fogleman: Yes sir, your Honor.
The Court: Alright.
Fogleman: Your Honor, the proof in this case, there's ample proof that multiple people were involved in this crime. The nature of the injuries themselves, and we submit that to not submit the accomplice instruction would be plain error, based on the facts of the crime itself.
The Court: Alright, you wanna be specific in your objection?
Ford: Yes, your Honor. There has been -- there's not a single witness who has testified that Jason Baldwin was even with Damien Echols on May the fifth. Not a single witness. There's not been a single witness to testify that they were together on May the sixth. In the absence of any testimony that ever places them together on those two days how can there be any circumstantial evidence from which to conclude that either one of them aides, agrees to aid, or attempts to aid -- there's been absolutely no evidence of that. Multiple perpetrators alleged notwithstanding, that is pure speculation. There is no evidence that puts them together, and that will be error, your Honor, to say that you can infer from nothing that they did it together is inappropriate.
Davidson: We would join in that argument, your Honor.
The Court: Well I think the argument just made would be a good argument to make to the jury. In order to find that one is an accomplice the jury would have to find from the instruction that one actually/actively? or directly participated in the commission of an offense, or with the purpose of promoting or facilitating the commission of an offense aided, agrees to aid, or attempts to aid the other person in the planning or committing of the offense, so those are affirmative findings they would have to make in order to find that either of the defendants were accomplices of the other.
Ford: But your Honor, there's no more evidence to tie them together (3:25?) -- we wouldn't be entitled to an insanity instrcution at this time. The Court could find -- I mean, maybe the jury wants to find that they're insane for some reason. There's no -- we're not entitled to an instruction on that because there's been no evidence of that.
The Court: Well, I --
Ford: There's no evidence that (even?) they were together, so how can there be any finding of any aid, attempting to aid or agreeing to aid in the commission -- they've never been put together, and your Honor, it's just not -- there's no evidence of it. None whatsoever. This Court has said repeatedly this is two separate trials, this is only as to Jason, this is only as to Damien, and now the State wants to bootstrap them together based on non-existent evidence.
Fogleman: Your Honor, number one, both of them say they did it. Number two, fibers from clothing in both of them's homes found on victims' clothing. Number three, Damien Echols and another person identified as Domini, being female with should length or a little bit longer hair, light-colored hair matches the description of this defendant at the time. And finally, the circumstancial evidence of the fact that multiple people were involved, all of that, your Honor, puts them together, and you take Damien Echols' mother who says, and Damien himself, who testifies that, number one, they're best friends. Number two, they spend three or four hours together every day, and that was the testimony.
The Court: Alright, I'm gonna give the instruction over the objection of the defendant. Gentlemen, also, the Court notes that AMCI 111 has been requested for Jason Baldwin but not requested for Damien Echols, is that correct?
Price: Yes sir, since he --
The Court: But he testified so I don't guess it'll even be relevant anyway. Alright, was there anything else? I'm giving 202, 203.
Davidson: Yes, your Honor.
The Court: Alright then. Did you give me -- I thought you were gonna do these verdicts forms -- different -- I still got them where -- is this the way you prepared them or tendered them?
Ford: Yes sir. There's one verdict form for each victim.
Fogleman: No, wait a minute. Your Honor, I don't see, and I may have missed it, all I see is verdict forms for -- oh wait a minute, I'm sorry --
The Court: I see what you've done, you made six verdict forms -- okay --
Ford: That's correct.
The Court: That's probably gonna involve the Court having to tell the jury that they will first take up and consider capital murder, then consider -- if they're unable to arrive at a verdict then to consider first-degree --
Ford: That instruction is given -- if you put together 301, 302, plus the (7:00?) homicide, that instruction says that you first consider this, (7:05?) move on to the next one. If you don't you move to the next one.
The Court: Well I don't think it's in there, I didn't see it.
Ford: It's the 30-- (one two?) pages instruction.
The Court: I know the one you're talking about but I didn't read it in there.
Ford: It's in there, your Honor.
The Court: Alright. (Pause) Alright, it's in here. In explaining the verdict form I'm gonna have to tell them that if it's a finding of one of the three chargers to check the appropriate box.
Ford: I think there is -- there's -- the instruction exist totally for -- I've got two pages on one --
The Court: For each of them --
Ford: The second one on my stack doesn't have that one page on Damien. You had two pages on both?
The Court: No, I don't think so.
Ford: Yeah you do. You do, my copy doesn't but your copy does.