The Court: Court will be in session. This is a hearing out of the presence of the jury.
(bench conference)
Ford: Judge, it's our understanding that they're going to call - this afternoon, two witnesses. One of them will be a band director and I'm assuming it relates to the Sanders girl that talked about it being the spring concert the night before -
The Court: Um hum.
Ford: Ok. And then there's another lady from the girl's club.
The Court: Um hum.
Ford: Uh - first, your Honor that we would request a cautionary instruction that that only applies to uh - Damien in light of the fact that the original testimony only applied to uh - Jason -
The Court: No, it didn't apply to -
Ford: - Yes, it did. It did not apply to Jason, it only applied to Damien and therefore any rebuttal on that - but just as a matter of curiousity -
The Court: I don't really remember - is that - was that correct? Let's see, the witness that testified -
Ford: All three of those girls testified -
The Court: - That they overheard Damien's uh - comments at the girl's basket - uh - base - softball. And I think probably that was uh - they were instructed that it only applied to Damien.
Ford: You did, your Honor.
The Court: Ok. I don't have any problem with that if ya'll don't.
Fogleman: I don't.
Ford: Out of the matter of curiousity, I don't - what is it they were rebutting - they were offering though?
The Court: I don't know.
Ford: Seems like the -
The Court: I don't have any idea. I guess uh -
Fogleman: I don't mind telling. Uh - number 1, Mr. Echols said that he had only been to the girl's club that one time and uh - this lady from the girls' club, she's the director. She said she saw him there on atleast three occassions right before his arrest. And uh - the other is rebutting uh - putting up information related to uh - the Sanders girl saying uh - about the day after being the band concert. Well, the proof's going to be that the band concert was like May the 17th.
Davis: Instead of the 6th.
Ford: That's fine, I -
Davidson: - Is one of the girls' club -
Fogleman: - Oh, the girls' club person also said the first night she saw Damien, Jason, and Jessie there and the next night - on Friday night the 28th, she saw Damien and Jason. And on Tuesday -
The Court: Ok, it would apply to Jason.
Fogleman: - And Tuesday the 1st, saw Damien and Jason.
Ford: - It can't apply to Jason, your Honor.
The Court: Not in a rebuttal.
Ford: You can't give a cautionary when he's testifying and then allow him to come back in rebuttal and not give a cautionary. It can't be done.
The Court: This witness is gonna say that they were both present?
Fogleman: Um hum.
The Court: What did the other witness say?
Fogleman: Uh - Damien said that he was there just one time.
The Court: In regard to Jason Baldwin?
Ford: They said he was there, Judge. All the witnesses -
Fogleman: Well, they said he was there that particular time. There hadn't been any testimony about how many times he's been there.
The Court: So that's not -
Fogleman: It's not rebutting any - it's not rebutting anything we've put on, your Honor. I don't mind -
The Court: - Well, but portion of that testimony and the testimony in direct - and I think I brought this up earlier - it places Damien and Jason together on that occassion. On those occassions.
Ford: That's already come out in direct, your Honor.
The Court: Well, I'm just saying that -
Ford: - There was a cautionary that only - that that testimony only applied to Damien. The court gave that cautionary. Matterfact, the state -
The Court: - I probably shouldn't have, but ofcourse if I did, they agreed to it.
Ford: They agreed to it. They didn't care, they agreed to it, Judge.
The Court: Alright. I'll give it again then. But it still does apply to him in some uh - slight significance that could be argued.
Ford: Not in rebuttal, your Honor.
The Court: In chief, when they introduced that evidence in direct testimony, it could be argued that they were - and has been argued that they were close friends, inseperable and were together on those occassions and in this occassion.
Ford: Well, then that's 404, your Honor. That they were always together, therefore they did this together. That's -
The Court: - No.
Price: Judge -
The Court: - I'm not going to allow an arguement like that.
Ford: Then - well, then that's what they're trying to do, I think.
The Court: Well, I don't - I told you I would give the instruction. Nobody seems to object to it.
Ford: Ok. That's fine.
The Court: Alright, let's - let's do it then.
(mumbling)
(open court)
Fogleman: We call Peggy Simmons.
(mumbling)
The Court: Just come right up here and you need to raise your right hand. Do you swear to tell the truth the whole truth and nothing but the truth in the matter now pending before the court so help you God?
Simmons: Yes sir.
The Court: Have a seat.
Ford: Your Honor, will you proceed -
The Court: - I'm not sure which witness is this.
Fogleman: This is Peggy Simmons from the girls' club.
The Court: Alright ladies and gentlemen, you are reminded of the previous instruction of the court that the testimony you're about to hear relates and should apply only to the defendant, Damien Echols. Alright, you may proceed.
Fogleman: Would you state your name and where you work for the jury?
Simmons: Uh - Peggy Jean Simmons, uh - the director from JW Rich girls' club.
Fogleman: Alright. And what's the JW Rich girls' club?
Simmons: It's a organization for girls to go and play ball and have a place to go.
Fogleman: Now Ms. Simmons, uh - the defendant, Damien Echols has testified that he had only been to the softball field - to the softball games on one occassion. Uh - are you aware of whether or not he has been to the softball field more than once?
Simmons: Yes sir.
Fogleman: Alright. And how are you aware of that?
Simmons: Um - well, the first night the girls - the girls at the gate came to me -
Davidson: Objection, your Honor, this would be hearsay.
Fogleman: Don't say what they told you, but what did you do in response to what they told you?
Simmons: Oh, I went to the gate with the girls.
Fogleman: Alright. And when you got to the gate, what - if anything, did you see?
Simmons: I saw him coming in the gate with the other one - the other two.
Fogleman: Alright. When you say the other - who are you talking about?
Simmons: Uh - Jason Baldwin and the - Misskelley.
Fogleman: Alright. Now is the person that you referred to as Damien uh - Echols, is he in the courtroom?
Simmons: Yes sir.
Fogleman: Would you point him out for the jury?
Simmons: Right there.
Fogleman: Ok, may the record reflect the witness has identified the defendant, Damien Echols.
The Court: It may so reflect.
Fogleman: Is the person you referred to as Jason, is he in the courtroom?
Simmons: Yes sir. Right there.
Ford: He is asking about Jason, the court's instruction was that this is not to be considered against Jason Baldwin.
The Court: Well, I can't change my instruction, but I told ya that this very uh - thing would arise. So, uh - overruled to whatever your objection is at this point.
Fogleman: Alright.
The Court: I'm not sure what it is.
Ford: I don't know why this witness should be questioned about Jason Baldwin since your Honor has told the jury they are not to consider this evidence -
The Court: I gave the instruction. That's all I can do. Anything else would be a comment on the evidence. Go ahead.
Fogleman: And Ms. Simmons how do you remember that particular occassion was something going on at the girls' club that makes you remember that particular occassion?
Simmons: Yes sir, we started pictures on the 24th - 25th, then went to the 27th - 28th and on through to June the 3rd.
Fogleman: Alright. Now what kind of pictures?
Simmons: Um - team pictures. Ball pictures and individual pictures of the ball teams.
Fogleman: Ok. Now uh - were you also at the girls' club the next night?
Simmons: Yes sir.
Fogleman: Alright. And uh - and who did you see up there the next night?
Simmons: Just uh - just the Echols and the Baldwin boy.
Fogleman: Alright. The two you've identified here in court?
Simmons: Yes sir.
Fogleman: Alright. And where did you see 'em on that night?
Simmons: They were coming in the gate.
Fogleman: At the girls' club?
Simmons: Yes sir.
Fogleman: And what was going on at the girls' club that night?
Simmons: We was having pictures again.
Fogleman: Alright.
Simmons: And uh -
Fogleman: - What else was going on? What were the girls doing?
Simmons: Um -
Fogleman: - Were there games going on, that's what I'm asking?
Simmons: Yes sir, there was ball games going on.
Fogleman: Alright. Now uh - on the um - I guess the next Monday would be Memorial Day, did ya'll have games on Memorial Day?
Simmons: No sir, we didn't.
Fogleman: Alright. And then on the Tuesday following Memorial Day, did you see any of these -
Simmons: - Yes sir, the two I identified.
Fogleman: Alright. Who - which two?
Simmons: The Baldwin and Echols.
Fogleman: Ok. The same two you previously pointed out to the jury?
Simmons: Yes sir.
Fogleman: And uh - where did you see them on that occassion?
Simmons: They were coming in the gate - I stayed out there with the girls 'cause they was scared.
Fogleman: Stayed out there by the gate?
Simmons: Yes sir.
Fogleman: Alright. I don't have any further question, your Honor.
Davidson: Ok Ms. Simmons, first of all um - when was the first time that you ever saw Damien Echols?
Simmons: May the 27th.
Davidson: And that was the first time you had ever seen him in your life?
Simmons: Yes sir.
Davidson: Never seen him before?
Simmons: No sir.
Davidson: Who was he with?
Simmons: Jason Baldwin.
Davidson: Who else?
Simmons: Uh - Misskelley.
Davidson: Who else?
Simmons: That's the only three I remember that night.
Davidson: And when you saw them there, you said you saw them at the gate, um -
Simmons: Yes sir.
Davidson: Uh - did you see them any after that or just walking in the gate?
Simmons: Walking in the gate going towards the ball fields.
Davidson: Ok. And uh - did you see anything - did you see them with anybody else that night?
Simmons: No sir.
Davidson: You just saw 'em walk in?
Simmons: I saw 'em go with - go to the fields.
Davidson: Ok. And how is it you say you remember this particular night?
Simmons: It was because the two girls got mixed up as to who was suppose to keep the gate.
Davidson: Ok.
Simmons: And both of 'em stayed.
Davidson: Now, um - and you say you saw Mr. Echols again on a different night?
Simmons: Yes sir.
Davidson: And what was the second time you say you saw him in your life?
Simmons: On the 28th.
Davidson: On the 28th.
Simmons: That Friday, yes sir.
Davidson: And on the 28th, did uh - uh - there was a policeman out there that evening wasn't there?
Simmons: On the 28th?
Davidson: Um hum.
Simmons: Not to my knowledge on that night.
Davidson: Well, when was the policeman out there to your knowledge?
Simmons: On the following Thursday.
Davidson: On the following Thursday.
Simmons: Um hum.
Davidson: And that would have been what date?
Simmons: Like the 3rd, I think.
Davidson: June the 3rd?
Simmons: Yes sir.
Davidson: And that's one of the dates that you said that you - did you see uh - Mr. Echols on that date?
Simmons: Yes sir.
Davidson: You did see Mr. Echols on June the 3rd?
Simmons: Yes sir.
Davidson: How many times do you say you saw him?
Simmons: Four times.
Davidson: You saw Mr. Echols four times?
Simmons: Yes sir.
Davidson: And he's the one in the dark hair - did you see him four times?
Simmons: Yes sir, I did.
Davidson: Ok. Now you gave a statement to the police, didn't you?
Simmons: Yes sir.
Davidson: And in the statement to the police - that was made uh - do you recall when you made that?
Simmons: It was after they was arrested.
Davidson: After they were arrested?
Simmons: Um hum.
Davidson: And uh - is this your signature at the bottom of this page?
Simmons: Yes sir, it is.
Davidson: And did you uh - write this out?
Simmons: Yes sir, I did.
Davidson: You did. And uh - um - can you read through uh - just look at it for a second and see if you saw him four times.
Simmons: Yes sir.
Davidson: That last date then uh - let me see it a second. June the uh - Thursday June the 3rd - you don't write on there that you saw Damien Echols, do you?
Simmons: No.
Davidson: You didn't - you didn't put that in just a few days after this happened - you didn't put that in the police statement, did you?
Simmons: No.
Davidson: Ok. And now you're saying that you remember that you did see him four times?
Simmons: I saw him four times, yes sir I did. I may not have wrote it, but I did see him four times.
Davidson: Ok. So what you gave the police was inaccurate then wasn't it? Don't you agree?
Simmons: Well, just for that one date, yes sir. Just for that one date. The other days -
Davidson: Ok. Now um - how do you remember the date that the policeman was out there?
Simmons: Because I asked him if he would kind of watch the grounds for me.
Davidson: And what policeman was this?
Simmons: He was the deputy sheriff, uh - Paul Weaver.
Davidson: Paul Weaver?
Simmons: Yes sir.
Davidson: And he's a deputy for who?
Simmons: Crittendon county.
Davidson: Crittendon county?
Simmons: Yes sir.
Davidson: Oh, ok.
The Court: Was he in uniformed or plain clothes?
Simmons: He was in plain clothes. He was up there and had his daughter's picture made.
Davidson: But you asked him to be out there as a police officer, didn't you?
Simmons: I asked him if he was going to be there to kindly help me stroll the grounds and he said he would.
(pause)
Davidson: That's all, your Honor.
Fogleman: I don't have any further questions, your Honor.
Ford: Ms. Simmons, did you know that Jason's girlfriend played on one of those softball teams?
Simmons: Yes sir.
The Court: Anything else? At any of the four times that you mentioned here today was there a uniformed police officer present on the ball field?
Simmons: I don't remember a uniformed police.
The Court: Do you have a policy of having a police officer there at any time?
Simmons: No sir, we haven't ha any trouble.
The Court: Anything else?
Davidson: So if someone had been in this courtroom and testified that a police officer was there, would they be wrong?
Simmons: I couldn't say. I do not remember a police officer in uniform. There was several there that wasn't in uniform that's girls played on the team. But Paul's the only one I asked to help me kind of patrol the grounds.
Davidson: Thank you.
Simmons: Ok.
The Court: Alright, you're free to go. You want to see if your next witness is here?
