THE COURT: Let the record reflect that this is a hearing in chambers out of the presence of the jury and out of the presence of the press inasmuch as it involves a juvenile consideration.
MR. FORD: Your Honor, the State has indicated its next witness is Michael Carson.
There are a couple of things I’d like to place on the record at this point. First of all, your Honor, that the State be instructed in limine to make no reference to Mr. Carson’s submitting to a polygraph examination with respect to his testimony in this matter or the results thereof.
MR. PRICE: Your Honor, we join in that request.
THE COURT: That request will be granted, and the witness will need to be instructed that he’s not to mention the polygraph.
THE COURT: Anything else?
MR. FORD: The State has requested the Court in limine off the record to limit our cross examination of Mr. Carson in some particular manner. We discussed it off the record, and it is my understanding the Court will allow us to inquire into his juvenile record to the extent that those juvenile records relate to truthfulness. Therefore, we are entitled to inquire whether he’s been convicted of burglary or theft or some other act of forgery, some form of dishonesty.
THE COURT: Actually, the rules of evidence that are applicable to these issues are Rule 609 and Rule 404(b) -- all of Rule 404 and Rule 609.
Under Rule 609(d) juvenile adjudications may be inquired into with consent of the Court if they would have amounted to an adult crime at the time it was committed, and I am going to allow that inquiry under that rule to crimes such as burglary, theft of property, crimes that involved a dishonest act.
MR. FORD: Would that include criminal impersonation?
MR. FOGLEMAN: Criminal impersonation is a misdemeanor.
THE COURT: Misdemeanors would not apply, just felony offenses.
MR. WADLEY: Judge, I think the case law indicates that forgery falls within that category.
MR. FOGLEMAN: This is criminal impersonation.
MR. WADLEY: Oh, I thought --
THE COURT: -- As long as it was, one, a felony; and, two, had he been charged as an adult or would have been an act that would be construed as a dishonest or untruthful act.
MR. FOGLEMAN: And if he was adjudicated as a delinquent of a crime --
MR. FORD: -- Oh, I agree. If there’s no adjudication, there’s no inquiry.
THE COURT: Right. That’s what we’re talking about, criminal adjudications of a crime. Had it been an adult crime, that would have been one going to truthfulness or honesty.
Now, adjudication as a minor in need of assistance or supervision, that is a different issue. I don’t think that those adjudications are appropriate.
MR. WADLEY: FINS petitions are usually not handled this way. FINS petitions usually don’t involve a crime, being charged with a crime.
MR. FOGLEMAN: If it is a FINS petition, it’s not an adjudicated delinquent.
MR. WADLEY: That’s my point.
THE COURT: I’m talking about adjudications where the witness was adjudicated a delinquent. If that was a crime such as burglary, theft, then those can be inquired into.
MR. DAVIS: As part of the FINS petition, apparently there was an order entered which was run by me for approval, and I did approve it but with the caveat that any information contained in it be provided to me, and I think Mr. Davidson overlooked sending me copies of what information they did gather.
But apparently they gathered medical records out of the FINS petition which we would be moving in limine that, number one, they shouldn’t have been obtained in the first place and, number two, the fact that they have those medical records that they not be allowed to refer to them in any way and be prohibited from referring to those medical records in the course of cross examination because they shouldn’t have had access to them, and they aren’t proper grounds or basis for cross examination.
This witness has a right to claim privilege as to his medical records whether they are in his court file or not. Since he doesn’t have an attorney, I think the Court needs to take action on a preliminary basis to make sure it doesn’t happen.
MR. DAVIDSON: I believe any privilege has been released when he provides them to the Court. That’s no longer a privileged document at that time.
MR. FOGLEMAN: He doesn’t provide them to the Court, your Honor.
THE COURT: I think by law they are required by action of the Court in these proceedings and you inadvertently got them. I think I entered an order of discovery. I didn’t know it contained privileged medical communications, or I would not have allowed it.
MR. PRICE: I had Judge Goodson sign a juvenile court order in Michael Carson’s juvenile case releasing all of Michael Carson’s Craighead County juvenile records. As a matter of fact, I have also had Judge Tom Hilburn release the juvenile convictions of Mr. Carson up in Lawrence County.
THE COURT: Juvenile adjudications of a crime are a different matter. I have already ruled that if they go to truthfulness and had it been an adult crime, then you may proceed. But I don’t think Judge Goodson or any other judge intended to release privileged confidential communications of a physician and a patient.
MR. FORD: Judge, two other things. Sorry to interrupt, Val. Number one, we have identified as a witness a gentleman named Danny Williams, and Danny Williams had conversations with this witness by virtue of follow-up care that was directed by order of the Juvenile Court, and we want to be able to inquire as to the conversations those two individuals had.
THE COURT: Who is Danny Williams and what is his profession? He is a person who was directed by order of the Court to follow up and supervise or administer some kind of counseling?
MR. FORD: That’s correct.
THE COURT: Is he some kind of professional counselor?
MR. FORD: He works for Recovery Way Adolescent Care and Treatment, and the conversation that they had did not relate to his treatment or follow-up care of this individual. They were just conversations that the two of them had while they were --
MR. DAVIS: -- while they were what?
MR. FORD: Together.
MR. DAVIS: In a counseling session.
MR. FORD: It is not my understanding that it was in a counseling session.
THE COURT: Give me an example so I can get the picture of what you want to ask this man to testify to. I don’t want to unreasonably limit your case and I’m not. But there are limits.
MR. FORD: I want to inquire as to whether he ever had a conversation about this crime with Danny Williams and if he says yes or no, that would lead to the next question. If he says no, leave it at that. If he says yes, I would then ask him, did you relate to Mr. Williams that he -- months prior -- that Jason had told you he did these things. Did you tell him that when y’all had this discussion.
MR. FOGLEMAN: Why would that be relevant?
MR. FORD: It seems to me if I’m having a conversation with someone -- if I’m having a conversation with you and you say, did you hear about that, did you hear about that car wreck down on Broadway yesterday and I say nothing. And a month later I claim to be an eyewitness to that accident in court, yet I made no reference to you whatsoever that I was -- yeah, I saw the accident, I was there -- and start relating what I know about the accident to you as opposed to the action that I am learning this information for the first time about that accident.
MR. FOGLEMAN: So you’re trying to put on testimony that when he’s asked about some incident he doesn’t say anything. You’re trying to put on his silence.
MR. DAVIS: He’s not even asked about it but when a topic is brought up --
MR. WADLEY: -- Judge, that’s certainly relevant.
THE COURT: My thought on it is that this man was an appointed counselor --
MR. FORD: -- May we ask him, did he have a conversation about this crime with Danny Williams?
THE COURT: His relationship with him is one as a court designated counselor?
MR. FORD: That’s my understanding.
THE COURT: To me that just doesn’t seem appropriate, for one. Two, it seems to me that you’re trying to attack the witness’ credibility by extrinsic evidence.
MR. FORD: I’ve got to ask him first. I’m entitled to ask him, did they ever have any conversations about that.
THE COURT: If he says no, that’s the end of it. If he says yes --
MR. FORD: If he says yes, I’ll probably ask him, what did y’all tell him. I’m entitled to know that -- what he said in the past.
THE COURT: I may let you ask the witness if he had a conversation with someone else --
MR. FORD: That’s fine.
THE COURT: -- now, whether you can call Williams and either confirm or deny whether or not a conversation was had, then that is an extrinsic attack upon his credibility, and it is probably collateral as well.
And, secondly, the fact that he was in a position as a court designated counselor, it seems to me there would be some privilege there. It doesn’t seem appropriate that a person can be forced to go to a counselor and then have that counselor betray any confidences that might be given to him. I understand that’s not the rule of it’s a psychiatrist. Whatever you tell a psychiatrist is --
MR. FORD: -- Judge, I --
THE COURT: -- I don’t know.
MR. FORD: Your Honor, I just want to know if I can ask him, did he have a conversation with Danny Williams in this setting, and I think you’re saying that I can.
THE COURT: I think you can probably ask him, have you discussed this with anyone else.
MR. FORD: Lastly, your Honor, it is our contention that we should be allowed to inquire into this witness’ drug use and alcohol use in light of the fact that he has been diagnosed as LSD dependent, marijuana dependent and alcohol dependent. Not that he abuses those substances but that he is dependent upon those substances.
It is our contention that when someone is -- that LSD dependence would affect one’s ability to determine between reality and fantasy and between truth and hallucination.
THE COURT: My ruling on that is the threefold test. One, is I assume that you have a good faith basis for asking the question, inasmuch as you do have his medical records inadvertently supplied to you, which I find was an error and mistake and you shouldn’t have had those confidential documents given to you.
Two, I’m ruling that any probative value -- that his drug addiction or use is prejudicial and that the probative value is outweighed.
And, three, that it does not relate to an element of truthfulness.
MR. PRICE: Judge, if I could reply in reference to the point the Court -- the allegation that we obtained these records improperly. The State got similar orders and got the entire juvenile record of my client Damien Echols, Jessie Misskelley and Jason Baldwin which included their medical records that were included in the juvenile files of Jerry Driver. And, therefore it is our position that it was not improper for us to obtain the same records from the Craighead County juvenile authorities.
THE COURT: I’m not saying that you did anything wrong.
MR. FORD: Is that also for us?
THE COURT: I’m saying you made discovery efforts and you were given those documents, and it is my belief that those documents should not have been delivered even under the discovery request because they relate to a physician-patient matter that is not generally free to be bantered back and forth, and I think they have some right to claim a privilege in that regard.
The witness doesn’t have a lawyer here, and it’s his right to claim that privilege. And I don’t think a Juvenile Court can, by giving you access -- I don’t believe that is a waiver and even though you know about them and the general rule is that once a confidence is broken, it is broken. I’m not going to allow a court order giving you access to those things to destroy that privilege.
MR. WADLEY: Any witness, your Honor, who has a drug problem to the degree that this boy has a drug problem, to say that you can’t inquire as to his competency as a witness to testify and what drugs he’s taken since this -- he claims this occurred -- that’s certainly relevant, your Honor, as to his ability to recollect and to testify and for us not to be able to go into that -- that -- that doesn’t allow the full truth to come out as far as his testimony is concerned.
THE COURT: I might allow you to ask him if he’s taken any drugs recently.
MR. WADLEY: Can’t we ask him, in the last six months have you taken LSD, have you smoked marijuana. That is relevant as to his competency as a witness.
THE COURT: My question is, couldn’t you ask every witness that takes the stand --
MR. FORD: We have a good faith basis to ask that, Judge.
THE COURT: Where does that good faith basis come from -- from the medical records that you have been given in a juvenile matter that did not involve delinquency or a crime.
MR. PRICE: I was Mr. Carson’s lawyer in the Craighead County juvenile matters.
MR. FOGLEMAN: Attorney-client privilege.
MR. FORD: But we’ve got two separate trials here, and that doesn’t bind us from asking.
THE COURT: -- I think you have got a big problem --
MR. FORD: -- It doesn’t bind Robin and I --
MR. FOGLEMAN: -- Of course, I don’t understand why -- your concern for Val and Scott. I don’t understand that --
MR: PRICE: -- For the record, I want to go ahead and state that according to Rule of Evidence 804(b)(3) a statement made or a confession offered against the accused in a criminal case made by a co-defendant or other person implicating both himself and the accused is not within the hearsay exception. So I don’t think even Mr. Carson’s statements will apply to us anyway.
MR. FOGLEMAN: He’s not going to say anything about Damien.
MR. DAVIS: He’s been instructed -- and I think his statement is something to the effect that he can’t remember whether Jason mentioned Damien or not. He thinks he may have mentioned him.
But I have instructed him it would not be appropriate to make any reference as to Damien -- because that would be regarding someone who hadn’t made the statement. It would be hearsay. And that he is strictly limited.
In fact I instructed him if there is a question posed to him by defense counsel which he feels compells him to bring Damien’s name up, that he should turn to the judge and ask the judge to talk to him before he responds.
MR. DAVIDSON: Do you see a problem with us cross examining this witness if Mr. Price represented him?
MR. PRICE: I certainly planned not to cross examine him. Mr. Davidson will do that.
MR. DAVIS: If his testimony goes solely as to Jason --
THE COURT: There may not be any need for you to conduct a cross examination. Do you want me to instruct the jury that that testimony is being received only as to Jason Baldwin?
MR. FOGLEMAN: That’s fine.
THE COURT: I think that’s probably appropriate. I’m still struggling with how far I can let the defense go on questioning this boy on his drug activities.
MR. FOGLEMAN: They only got it from medical records. When is this treatment?
MR. PRICE: Last fall. He was placed by court order on September 8, 1993, in the Wagner, Oklahoma --
MR. FOGLEMAN: We are not talking about anything --
MR. FORD: But this is after --
MR. PRICE: -- the murders.
MR. FORD: -- this is after he’s been in jail. He’s supposed to have heard this confession in August and then in September he’s got to be checked in because he was a dope head.
MR. FOGLEMAN: Are you saying he was on dope when he was in jail?
MR. FORD: No, but he could have been in withdrawal, because he had to go into treatment upon leaving jail. I think Robin is correct that that goes into his ability to recall, particularly if he’s taking LSD.
MR. FOGLEMAN: I’m not an expert on LSD.
MR. DAVIS: Judge, that’s exactly what concerns me is, number one, when we are talking about, he could have been in withdrawal. He could have been in withdrawal. He could have been -- it could affect his memory. And I am scared that the jury out there is going to say, my God, if you take LSD we all know -- we’ve seen the commercial with the brain on drugs, looks like a fried egg in a skillet.
MR. FORD: -- That’s for them to --
MR. WADLEY: -- They are going to ask the jury to use their common sense at the close of this case.
MR. FOGLEMAN: The effect of LSD doesn’t have anything to do with common sense --
MR. WADLEY: -- Judge, I’ve heard this Court say --
MR. FOGLEMAN: -- common knowledge.
MR. WADLEY: -- you take your witness as you find them. This boy has a problem. He is LSD dependent. And that is certainly appropriate. I can ask him those questions.
MR. DAVIS: How do you know he’s LSD dependent?
MR. WADLEY: That’s what the reports say.
MR. DAVIS: The medical reports that you’re not supposed to have access to.
MR. WADLEY: Well, wait. What are you talking about --
MR. FOGLEMAN: -- The judge just said that you didn’t do anything wrong, but you shouldn’t have had access to them.
MR. PRICE: That we obtained pursuant to Judge David Goodson’s order.
MR. FOGLEMAN: It is something, Judge -- before Mr. Ford was saying, I might ask him has he smoked any marijuana in the last six months, taken LSD in the last six months. There’s no good faith basis for that.
MR. PRICE: Judge, for the record where were three different orders pertaining to the drug treatment of Mr. Carson. One was on September 8, 1993. That was an order by Craighead County placing him into Wagner, Oklahoma. On September 29, 1993, there was an order placing him at Pinnacle Point -- I believe that is in Little Rock -- also in Craighead County.
MR. FOGLEMAN: Is that specifically for drug treatment?
MR. PRICE: This particular order does not specifically say for drug treatment. The third order dated October 13, 1993, also out of Craighead County, places him at the -- it’s a -- the juvenile is found to be a family of one and that physical custody of the juvenile be placed in Recovery Way --
MR. FOGLEMAN: -- That’s a Family In Need of Services Order.
MR. PRICE: That’s correct. This order doesn’t specifically mention drugs.
MR. WADLEY: Totally different issues, Judge. We are talking about his competency to recall and testify, not whether it’s a FINS petition or adjudication of delinquency.
MR. FOGLEMAN: Just because you’ve been in those facilities doesn’t mean you’re drug dependent. Damien’s been in those facilities, and I have never accused Damien of being drug dependent.
MR. PRICE: Thank you.
MR. DAVIDSON: One more thing while we’re on that, Judge. We also ask for the same ruling that any items that the prosecutor has obtained from the records of Damien Echols that we’re not releasing privilege in any of those medical records, and we’re asking that the Court also instruct them not to use that.
THE COURT: It would be the same ruling.
MR. WADLEY: Judge, the effect of it is -- they’ll parade this boy in here, put him up there and to the jury this kid is just a normal, fine man. His memory couldn’t be affected by anything. And for the jury not to be able to hear that or not know about it is distorting what the evidence is.
MR. FORD: Your Honor, if this same witness had come into contact with Jason and then in October been involved in an automobile accident and suffered head trauma which impaired his ability -- his mental faculties, you would clearly be able to inquire into that on cross examination, including his ability to recall and reflect accurately on the truth.
If she same guy is out in October being in-house because he’s an acid abuser, I think that is no different than being involved in some sort of head trauma.
MR. DAVIS: Judge, I think -- the key difference is if a person has bumped his head or been involved in a collision, there has to be some expert basis -- everybody who is in an automobile accident sustains a head injury, everybody bumps their head. It doesn’t affect their ability to recollect and to allow somebody to throw that into the case just under the hopes that somebody will reach out and grab it and say, boy, that affected their memory.
It’s the same thing they are asking to do with the drug issue because they know it’s so highly volatile and the mention of the word LSD or whatever will cause the jury to inappropriately prejudice us in regard to putting that evidence on when the relevance of it is miniscule.
MR. WADLEY: Judge, they don’t even want it to be mentioned, forget how much. Judge, it goes to the weight.
MR. FORD: That’s been your ruling in every other case.
MR. WADLEY: They can attach as much significance or as little significance to it as they want but they ought to be able to hear that. Because that’s their witness. That’s what he is.
THE COURT: I think you can attempt to impeach the witness’ credibility under Rule 607, 608, 609 by his juvenile adjudications, and I have already allowed you to do that. But I’m bothered by your desire to cross examine him with regard to specific acts of misconduct involving drugs that may or may not affect his ability to recall --
MR. PRICE: -- Judge, excuse me. Steve Hale, the attorney for the Commercial Appeal is here --
THE COURT: Yes, I’ve got a note that he’s demanding immediate access to the closed hearing currently being conducted. And as far as I’m concerned, it is a closed hearing because it relates to the testimony of a juvenile.
I think I’m going to stick with my -- after reviewing Rule 404, 606, 608, and 609 that I’m not going to allow you to --
MR. WADLEY: Judge, can we ask the witness if the use of LSD impairs his ability to recollect? If he says no, that would be it.
THE COURT: What do you propose to do if he says yes?
MR. FORD: Well, then that very point -- that’s why it becomes germane.
MR. FOGLEMAN: Your Honor, I would not that these records are stamped “confidential.”
THE COURT: I have already ruled on those juvenile medical records. I don’t think they should have been turned over under a discovery order.
MR. FOGLEMAN: This one that I’m looking at doesn’t say -- there may be others but this one doesn’t say “LSD dependent.” It says “hallucinogen abuse.”
MR. WADLEY: It is in there.
MR. FORD: Judge, can we go to lunch and let you ponder this?
THE COURT: I’m just about through reading these.
MR. FOGLEMAN: What did you all say he was convicted of?
MR. PRICE: In Lawrence County there were two on October 29, 1993, one of them for burglary and the second one was criminal mischief in the first degree, a Class C felony.
MR. FOGLEMAN: Judge, we would submit that criminal mischief doesn’t go to truthfulness.
THE COURT: No. Criminal mischief is a misdemeanor.
MR. PRICE: Your Honor, criminal mischief is a C felony and the rule says --
THE COURT: Okay, it could be --
MR. PRICE: -- an adult conviction is admissible against a juvenile.
MR. FOGLEMAN: It says it may be. It doesn’t say it is.
THE COURT: Do you think that goes to an element of truthfulness?
MR. FORD: It does -- when he broke in, that’s what he did.
THE COURT: I will let that in, too. Let me ask, what exactly are you trying to prove by introduction of evidence that he has a drug problem?
MR. FORD: Your Honor, I think it would be our attack on his competency as a witness to accurately recall the truth because of his drug abuse, that if you’re high or hallucinating or drunk or in the act of withdrawal from one of those three substances, you don’t recall what you do when you go out and get drunk. You don’t recall as well what you do when you go out and get high.
MR. FOGLEMAN: Your Honor, he was in jail. I don’t think there’s any allegation --
MR. WADLEY -- Judge --
MR. FORD: -- You can lose memory in the past for something you do -- I could lose -- I could go out and get drunk tonight and forget things that happened today.
MR. WADLEY: Forget drunk, your Honor. If you take hallucinagens and there’s that much gap in time between the time you claim you heard something and the time you are going to come in and tell a story, of course that can affect your memory and recollection of what you were told.
MR. DAVIS: That is exactly what concerns us because we’ve heard the opinions of Doctor Ford and Doctor Wadley, but I’m not sure that a medical doctor would say that the use of hallucinagens necessarily would impair the ability to recall.
MR. FORD: We may be able to put that evidence on. That evidence may in fact come on.
MR. FOGLEMAN: How are you going to do that without violating his medical privilege?
MR. FORD: You can just ask a doctor, does LSD affect your ability to recall --
MR. FOGLEMAN: He would have to know to what extent --
MR. FORD: You can tell him. You can ask him --
THE COURT: I’m going to rule that you cannot go into that. Another additional reason other than those I’ve already stated is because he is a juvenile.
MR. WADLEY: To make sure I understand the Court’s ruling, is the Court saying on cross examination if he’s asked the questions, have you ever discussed this with anybody before, has anybody ever told you about this crime that occurred before. Is the Court saying we can’t ask that question?
THE COURT: No, I said you could ask that question. But if you ask him, has anyone ever told you about it, he can say yes or no. He can’t go into what he was told --
MR. FORD: Right. That’s fine. We just want to ask him if he ever had a conversation and during that conversation what did you say. We can ask him that.
THE COURT: If you’re referring to this Williams and he was a counselor and you want to ask him what he told Mr. Williams, if he says I didn’t tell him anything, then that’s the end of it and you cannot call Williams.
